Former Judge Shah criticises the Supreme Court of India

The mess in India’s higher judiciary is, sadly, of its own making

The judiciary has become cocooned while being the supreme force for transparency elsewhere. The complainant against CJI Gogoi has laid bare this hypocrisy writes Shekhar Gupta in The Print

Most of today’s judges on the Supreme Court bench were in their thirties on 7 May 1997 when, famously, the full court sat and issued a 16-point declaration called Restatement of Values of Judicial Life. That year was the 50th anniversary of our Independence. You can find the full text here.

Twenty years on, we should check if our most hallowed institution has lived up to it.

You might begin with the question: Why is it that the Supreme Court of India has been making headlines for controversies than for good news? The current Chief Justice of India, Ranjan Gogoi, as his two immediate predecessors, Justices Dipak Misra and J.S. Khehar, have faced crippling controversies. The two before them cadged convenient sarkari sinecures. One of these, regrettably, in a Raj Bhavan.

Khehar was “mentioned” in the diaries of dead Arunachal chief minister Kalikho Pul. Dipak Misra first faced an unprecedented joint press conference by his four senior-most colleagues, protesting what they saw as his high-handedness and lack of institutional democracy, and then an impeachment threat by the opposition. The ‘sexual harassment’ crisis facing Justice Gogoi now is the gravest.

Let’s presume that each of these was spotless and targeted by interested parties. But we simply cannot defend none of them facing any scrutiny. Mostly, it happened because there was no procedure, mechanism or institution for such an inquiry. And where there is one, the Internal Complaints Committee for Sexual Harassment under the Vishakha Guidelines laid down by the highest court, the matter has been referred to a specially constituted committee of SC judges first, which the complainant has rejected.

Here are the three key reasons our judiciary has dug itself into a deep hole. First, its insistence on ducking inconvenient questions by invoking stature and reputation. This means there’s never closure on any issue. Second, that while the court lectures us on transparency, it remains India’s most opaque institution. And third, there is no mechanism, even a council of respected elders, which could step in when a crisis of credibility or internal distrust became evident.

Parliament had tried to create the National Judicial Accountability Commission exactly for such situations, but the court struck it down 4-1 as unconstitutional. Three of the judges who served on that bench (including Chelameswar, the lone dissenter) figured in the four-judge press conference in Gogoi’s company. 

Since Gogoi was the most senior among the four and the only one still in the chair, he needs to reflect on how his institution ended up here. Why is his Supreme Court looking like a big, flailing body oozing blood from a dozen, mostly self-inflicted cuts? And piranhas of various kinds are lurking.

It’s a tragedy when Supreme Court judges complain that they are victims of conspiracies. How did this most powerful institution, which is supposed to protect us and give us justice, become so vulnerable that busybody conspirators can threaten it? If it is so weak, where will we citizens go for justice?

The CJI’s office is a most exalted one. It is also possible that, as he and his brother judges in that most avoidable Saturday morning outburst indicated, there indeed is a conspiracy to undermine him. The Chief Justice of India deserves the fullest protection against interested parties throwing muck at him. But exactly the same principle should also apply to the complainant and the underdog.

Justice Gogoi and colleagues erred gravely in holding that peremptory Saturday morning sitting and pre-judging her case. Subsequent repairwork is now lost in the thickening murkiness, with an activist lawyer popping up with conspiracy theories. What these precisely are, we don’t know, because he has submitted them in a sealed cover. 

The sealed cover has now become a defining metaphor for the last of the three big mistakes the court has made: Making itself the most opaque institution while preaching transparency from the Republic’s highest pulpit. Here is an indicative list. In the Rafale case, the government’s evidence is in a sealed envelope, as indeed are all the reports of the officer in-charge of the NRC process in Assam. In former CBI chief Alok Verma’s case the CVC report remains in a sealed cover, as do NIA’s reports in the Hadiya ‘conversion’ case.
The SC order to political parties to submit details of their donors to the EC is the latest example of this quaint judicial doctrine of the sealed cover. You might understand need for secrecy in a rare case. But if even the compensation for the assorted retirees heading the court-appointed Committee of Administrators of Indian cricket remains in a sealed cover for three years, it’s fair to ask why the court should be hiding behind secrecy when its entire BCCI excursion was about transparency.

Opacity is comforting. You can so easily get used to it. The SC protects RTI for us, but claims immunity for itself. Only seven of 27 SC judges have disclosed their assets. There is no transparency or disclosure of the collegium proceedings, or even explanation when it changes its mind on an appointment. Shouldn’t you have the right to know exactly how many special and empowered committees the court has set up, mostly as a result of PILs, their members—especially retirees—and compensations? If the executive hid such information from you, you’d go to the courts. Where do you go against the Supreme Court?
Judges are wise people. It follows that top judges should be among the wisest of all. They must reflect on the consequences of their making the judiciary an insulated and cocooned institution while being the supreme force for transparency and disclosure elsewhere. It is this contradiction and hypocrisy that the complainant against the CJI has laid bare. That’s why the court is looking unsure.

Read that 16th and last point in that 1997 Restatement of Values of Judicial Life: ‘Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.’

The Supreme Court’s refuge in opacity does not live up to this principle. An institutional reset and retreat are called for here. Of course, while both the complainant and the CJI get justice.

Why the Indian Supreme Court Has Found Itself in an Embarrassing Controversy

There is an important question before the judiciary: Who will be the custodian of the custodians? Rajeev Dhavan in The Wire

Chief Justice of India Ranjan Gogoi (centre). Credit: PTI



Between December 2018 and April 2019, certain controversies concerning the Supreme Court of India have surfaced:

The first concerns the dismissal of an employee for taking casual leave and protesting against her transfer.
The second surrounds the scandalising of the chief justice of India by the said employee.
Third, the remedial action taken by the Supreme Court suo motu (on its own) under the writ jurisdiction of the court with the chief justice on the bench but not passing the order signed by Justices Mishra and Khanna.
Fourth, involving the exclusive in-house procedure for high court and Supreme Court judges.
These controversies are ongoing and may in, as much as they can, put the very notion of justice on trial. Our Supreme Court has often quoted Lord Atkin’s observations in a contempt case of 1936:

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

This article is not intended to obstruct justice or bring into disrepute our justice system – with the Supreme Court at its apex – or the high office of the chief justice of India. It examines issues of due process and procedure.

Dismissal of an employee

An unprecedented controversy has arisen concerning an employee, who was transferred from the CJI’s ‘home’ or residence office, was suspended and later dismissed from the Supreme Court’s service. The charges against her included questioning her transfer, bringing/soliciting undue influence from the president of the Supreme Court Employees Welfare Association on her transfers and taking leave without approval.

Her response was that she had been transferred three times, she had gotten leave for her daughter’s function and was asked to attend office for a little while but couldn’t and the branch officer was informed, and she had spoken to the president of the employees association to find out what was happening but not to influence outcomes. After her suspension order on November 27, 2018, she was asked to appear before a departmental committee hearing on December 17, 2018, but collapsed outside the door due to anxiety and was told on December 19, 2018, that the charges against her had been proven.

The next day her husband wrote to the officer concerned to present her defence statement. However, on December 21, 2018, she was dismissed from service. In another part of the story, with which may not directly be concerned, her husband and brother-in-law were dismissed from the Delhi police on a basis unconnected with the Supreme Court; namely a prior incident of 2012 which had been mutually settled and for links with undesirables.

Also read: Why the Panel to Investigate Sexual Harassment Allegations Against CJI Is Problematic

Far from being a drop in the ocean, or a storm in a teacup concerning an employee, it concerns the administration of justice by the Supreme Court’s administration. I assume that the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules 1961 apply. Dismissal from service is a major penalty, though it is not clear from the information available whether her dismissal would disqualify her for future employment (under Rule 11).

It is arguable that such a major penalty should not have been imposed; and although formal procedures were followed, they may have been insufficient and hurried. That can only be found when we examine the record of the inquiry which statutorily would include the charges, a written defence, oral and documentary evidence, orders of the Disciplinary Authority and a report.

Thereafter, due process would have dictate whether a major penalty must be imposed – which would normally follow if there is conviction on a criminal charge or “where the Disciplinary Authority is satisfied for some reason to be recorded in writing it is not reasonably practicable to give to the Court an opportunity of showing cause before (awarding) any of the (major)… penalties…” (Rule 13).

Until we have the full record, we shall not know of the details of the rigour of the due process that were followed or the reasons for not doing so, bearing in mind that the woman had the same protection that civil servants under Article 311 of the constitution possess. For the present, the internal justice meted out to the employee seems in violation of due process and prima facie excessive. This is becoming more and more evident as information is coming out that she was not given a proper hearing and crucial witnesses were not examined at the inquiry. At the age of 35, her chances of further employment have been diminished.

Though not part of the charges, in the Supreme Court, it transpired that an FIR was filed against her on March 3, 2019, allegedly for taking a bribe from the informant (NK) who gave her a part payment of Rs 50,000 (part of Rs 10 lakh to be paid) to secure a job in the Supreme Court. She was granted bail on March 12, 2019, but the case was transferred to the Crime Branch which moved for the cancellation of her bail. In turn, she complained, later in March, of harassment by the police, writing letters to the prime minister, National Human Rights Commission and others. If this is a case of victimisation, it would raise more issues.

It could be argued that a little injustice here or there will not dent the majesty of the law. But surely the motto of any court action in its administrative or judicial side must be: “We, who fight for justice must ourselves be just.”

Scandalising the court justice

According to the law of contempt, if a person or media makes any allegation against judges or justice system which brings them in disrepute can be punished for scandalising the judiciary. This offence was invented by Justice Wilmot in 1765 in a draft order never delivered in the John Wilkes affair, but published in 1802 by his son.

Since it covers the media, it is a species of constructive contempt. It is included in the definition of criminal contempt under India’s Contempt of Courts Act 1971 (Section 2 (c)(iii)), and in any case also draws from the high court and Supreme Court power as a court of record with the specific power to punish for contempt (constitution Articles 129 and 215) and any other power in addition to the powers under the Act of 1971.

In a 1899 Privy Council case, English judges said this offence was “obsolete” for England, but may be relevant in “small colonies consisting principally of the coloured population”. This redemption for English justice was short lived and scandalising the judges was revived, but used sparingly in recent years. In India, the scandalising jurisdiction is used more frequently, despite the caution of Justice Krishna Iyer in the Mulgaonkar case (1978).

With this introduction, let us turn to our case. On April 19, 2019, the woman who was dismissed wrote to 22 judges of the Supreme Court detailing sexual harassment and sexual advances by the CJI in October 2018, giving explicit details of events when advances were made. She claimed further humiliation by being forced into apology under pressure for her insolence and that her dismissal was a case of victimisation, since the alleged major embarrassing incident took place on October 11, 2018. For our present purposes, we need not elaborate on the details.

Also read: Why CJI Gogoi Should Step Away From Judicial Work Till In-House Inquiry is Complete

What is important for our purpose is that when the media sought clarification from the CJI, the relevant response of Secretary General Sanjeev S. Kalgaonkar (apart from denying victimisation, and asserting that her family had criminal antecedents and treating the allegations against the CJI as an after thought to her dismissal) categorically stated:


“The allegations regarding 11th October 2018, as well as other allegations as can be discerned from your emails are completely and absolutely false and scurrilous and totally denied… the motive behind these false and scurrilous allegations is obviously mischievous.”

Whether this response was shared with the CJI before or after it was made is not clear, though no Secretary General would normally make such a public reply without consultation. One must, therefore, take this statement as the official response of the Supreme Court in consultation with the CJI. Hence it was the CJI’s response as well.

It is necessary to add that after the Vishakha case (1997), cases of sexual harassment are to be dealt with by a special procedure. But the Supreme Court’s Gender Sensitisation and Sexual Harassment of Women Regulations 2013 exclude complaints by employees in that Regulation 2 (a) defines an aggrieved person to exclude “a female already governed by the Supreme Court Service regulations”. This is a significant exclusion, denying the rigour of sexual harassment procedures which are applicable to non-employees within the precincts of the court but not the employees.

Be that as it may, the #MeToo movement has advanced the presumption that the complainant’s version be treated as prima facie bonafide. A sexual harassment case against CJI Gogoi needs to be moved forward.

Procedure for scandalising

We must pause here for a moment because the Secretary General clearly felt that a case of scurrilous scandalising is made out, the procedure ahead is clear. Under the Contempt of Courts Act 1971, a case of criminal contempt can only commence if the Attorney General or Solicitor General permit or if the Supreme Court does so on its own motion (Section 15 of the Act 1971). The way forward was simple. Issue notice of contempt to the woman and anyone else who repeated the alleged scandalising comments including the media. But the court did not initiate a notice of contempt nor did the Solicitor General present such a motion to the court.

Therein lies the problem. If such a notice was issued, the contempt proceedings would normally be in open hearings. Both the Mulgaonkar case concerning the Indian Express (1978) and Shamlal concerning the Times of India (1978) were about exposing the pusillanimity of Supreme Court judges during the Emergency. Except Chief Justice Beg, no one wanted this. Two of the judges (Justices Chandrachud and Bhagwati) were in line to become CJIs. Justice Krishna Iyer, behind the scenes, and in his judgment counselled restraint to avoid further publicity, which is inevitably one of the consequences of contempt hearings in open hearings. No less, the views aired at the time were that even though truth was not specifically a defence, it would be invoked against the justices.

Justice Krishna Iyer told me he was well aware of this consequence. His judgment constitutes what have come to be called the Mulgaonkar guidelines. No contempt – no controversy. After the amendment of the Contempt of Court Act 1971, in 2006, Section 13 of the Act specifically allows truth as a defence. The relevant portion reads:

“13. Contempts not punishable in certain cases – Notwithstanding anything contained in any law for the time being in force … (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”

This would create awkwardness in the proceedings, to say the least. ‘Truth’ as a defence is available “in any proceeding for contempt”. In our present context, it would mean that the woman would present all the detailed evidence in her favour for invoking truth as defence, even thought the proceeding would be to protect the judge, not the complainant.

This was the only remedy by and through which the Supreme Court could have proceeded, but it chose not to do so. Treating this case as a purely contempt case would have proved hazardous for the CJI.

The Supreme Court’s suo motu action

Instead of a case in contempt for scandalising, the Supreme Court processed a writ petition as a “Matter of Great Importance touching upon the Independence of the Judiciary – mentioned by Tushar Mehta: Secretary General of India”. No petition was filed. It is clear that even if the CJI was the master of roster, he could not have handpicked judges and certainly not sat on the bench.

It cannot be overlooked that Justice Gogoi was part of the four judges who protested in public then Chief Justice Deepak Misra’s abuse of his power over the roster. Chief Justice Misra had also handpicked Justice Arun Mishra, who appears to have been picked in the present case in the special Saturday hearing on April 20. The less said, the better.

For the moment, let us assume that the petition was maintainable and that either (a) someone’s fundamental right was infringed upon, or (b) that this writ was part of the undefined power of the Supreme Court as a Court of Record, which specifically includes the power to punish for contempt. But since these proceedings were in lieu of contempt for scandalising, a new procedure was evolved at the instance of the CJI, albeit on the mentioning of Solicitor General Mehta.

In the hearings of the suo motu case, the Supreme Court did not caution a censorship of details which were in the public domain but invited the cooperation of the media by stating in its order of April 20:

“Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.”

This is not a gag order, but a request to be respectfully treated as a gag: In the Sahara case (2012), the Supreme Court assumed a power to postpone reportage where criminal proceedings were pending, under the court’s inherent power as a Court of Record. The inherent power seems to be increasing by leaps and bounds. This invisible reservoir of power is slowly becoming visible and subject to diverse uses.

What needs elucidation is that the court’s proceedings of April 20 were specially held on a Saturday morning with the Attorney General K.K. Venugopal, Solicitor General Tushar Mehta and president of the Supreme Court Bar Association, Rakesh Khanna being present. What seems astonishing is that CJI Gogoi was also part of the bench, but not a signatory to the order. No person can be a judge in their own cause or hand pick a bench. At best, it could have gone to some other bench without the urgency of a Saturday hearing. Master of the roster or not, I think the proceedings in this writ petition are sufficiently tainted and should be closed.

Instead of closing this suo motu writ petition, whose sole purpose was to quiet the storm of protest arising out of the CJI controversy, on April 23-24 the Court issued notice to advocate Utsav Bains who filed an affidavit in which he asserts that there was a wider conspiracy involving a corporate figure who, along with an alleged fixer Romesh Sharma, tried to “frame the Hon’ble Chief Justice of India in a false case of sexual harassment to pressurize him to resign” and that Bains was privy to documents under sealed cover to prove this. On April 24, the bench consisting of Justices Arun Mishra, Nariman and Gupta summoned the highest officers of the CBI and police. The simplest solution would be to ask the CBI to investigate and file an information to this effect without the ensuing drama which has now become a part of the crisis.

The in-house procedure

Since the judges did not want complaints to be aired ad lib against them short of impeachment, an in-house procedure was created as a result of the agitation of the Bombay bar concerning the chief justice of Bombay in the Ravichandran Iyer case (1995). This in-house procedure was to protect public faith in high court judges. The question posed by the judgment was:

“When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public confidence in the efficacy of judicial process.”

The purpose was to prevent public discussion by the media or agitation by the Bar and to protect judges by harmonising free speech rights. The judgment, therefore, explores self regulation: “It seems to us self regulation by the judiciary is the only method which can be tried and adopted.” The trajectory was an in-house inquiry following which matters could eventually be acted upon by the CJI until when the Bar was to “suspend all action”. The court said,

“The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned.”

Of course, in our case, it is the CJI who is involved. In a better-late-than-never initiative, the CJI passed the controversy to Justice S.A. Bobde (senior-most judge after the CJI), who will now assume the role assigned to the CJI in the Iyer case. Since Justice N.V. Ramana said he will not be a part of the panel, its constitution remains in question. Who will the panel report to? Surely not to CJI Gogoi? We are compelled to raise the further question as to whether CJI Gogoi was fully involved in the creation of procedure in this case.

Also read: Charge Against CJI Gogoi Should Be Handled Correctly If SC Wants to Keep People’s Faith

This procedure was also used in the Bangalore crisis and Justice Gupta (then chief justice of Kerala who inquired into it) told me that nobody wanted to depose against the judges. In the Madhya Pradesh case, such a committee was appointed against high court Judge ‘X’ who was later absolved. How would the woman complainant fare in a committee examining the case against a CJI noting that (a) the Supreme Court’s Secretary General has already taken a view that the allegations are scurrilous and (b) truth in its totality would not be a defence. I really think this in-house procedure was directed against the Bar in Iyer’s case in a particular situation and its extension is dangerous and undesirable as a clandestine in camera process.

No in-house procedure can be a substitute for a sexual harassment case.

Reviewing the controversy

This controversy is embarrassing in many respects:

I believe the dismissal proceedings against the woman employee were unfair.
The Supreme Court through its Secretary General had already taken a view that her comments were scurrilous presumably with the CJI’s knowledge since it aired his defence.

The procedure adopted on the Saturday hearing was unfair and tainted and must be closed.

If the Supreme Court felt the court was scandalised, the court should have issued contempt proceedings giving the accused woman the right to invoke truth as a defence.

The in-house procedure under the Iyer case is clumsy and unfair.

No in-house procedure can be a substitute for a sexual harassment case. The woman would have little chance and it is a moot question who would depose against the CJI under these circumstances.

There remains the question of whether during his investigation, the CJI should continue to sit in his judicial or administrative capacity. I am strongly of the view that we should continue to discharge both these functions in the confidence that he will not interfere with any procedure further. We have yet to learn the manner in which the in-house procedure will proceed.

We have seen that the CJI is likely to have known of the dismissal proceedings. He was certainly instrumental in constituting the suo motu bench. He is likely to have known of the Secretary General’s statement in his defence that the allegations were scurrilous. He had a choice to proceed in contempt as he did in the Justice Katju case, but may have felt that this might be perilous in the present case. He may have been right to pass on the controversy to an in-house, procedure, as an alternative because after the hearing on April 23, the judges of the first five courts appear to have met in conclave while hearings in those courts were suspended. The CJI seems to be in the know of the choices of procedures to deal with the crisis – each more inventive than the other.

In any case, this is a no-win situation. If the in-house procedure results in his favour, it will be sought to be questioned – but there is no forum for doing so. If it goes against him, the embarrassment will be greater, leading to resignation or impeachment.

Looking to the future

Having said this, there is a need for a judicial accountability mechanism for the high courts and Supreme Court through a constitutional amendment, as in so many countries. There must be a procedure to answer the adage Quis custodiet ipsos custodes: Who will be the custodian of the custodians.

Supreme Court Justice Chelameswar On the ‘Role Of Judiciary In A Democracy’ like India

Justice as a king’s command

Jawed Naqvi in The Dawn


REMEMBER Emperor Akbar in Mughal-i-Azam? Akbar ka insaf uska hukum hai. Akbar’s command is his justice. This was how the great Mughal ruler dismissed a poor woman’s petition to save her daughter from imminent and wilful execution in the movie. In the real world, Akbar may have never spoken Urdu just as he may have never been approached to spare the life of any Anarkali if she ever existed. The dialogue writer, Wajahat Mirza, died in Karachi in 1990 but not before unwittingly describing an essential feature of justice everywhere — that it is universally a subjective thing. It was the whim of ancient kings and it remains a whim packaged in ornate terminology today, be it as a feature of democracy or of the Third Reich.

Four judges decreed the hanging of Z.A. Bhutto under military dictatorship. Three opposed it. Bhutto lost the lottery. You may see the judges on both sides as scrupulous practitioners of law and you may see their choices as a personal predilection or both. Yakub Memon would have perhaps lived had a different judge had his way. One judge unseated Indira Gandhi from power, another endorsed her emergency rule. President Pratibha Patil opposed the death penalty on principle, to quote a different example, so she never rejected a mercy petition even if she did it by leaving the files unattended. Pranab Mukherjee, who succeeded her, clearly thought otherwise. He threw out all the mercy petitions he could, opening the path to the gallows for those on death row. Justice is thus both a lottery and the wilful command of a moody emperor with or without the judge’s wig.

As far as I am aware, there were no lawyers in Aurangzeb’s or Kautilya’s time though Shakespeare could not have conjured Portia without a nascent European tradition of black-robed advocates. The encounter between the petitioner and the magistrate in Chandragupta Maurya’s court would have been direct and swift, with no place for intermediaries, today’s LL.B degree holders.

In a different era, the lawyers can mutate into an ideo­­logically driven mob, for example to shower Mumtaz Qadri with rose petals while cheering him for killing a secular, liberal soul that Salmaan Taseer was. And there were the Indian counterparts who vici­­ously assaulted outspoken student leader Kan­h­a­iya Kumar as he was being escorted to the courtroom.


Judges often change their ideological preferences to comply with the doctrine of the state they serve.


In India, there is a new tradition, which I also noticed in Srinagar, to prevent lawyers from defending a petitioner. Hansal Mehta made Shahid, a powerful film depicting the true story of a Muslim lawyer in Mumbai who was killed by irate pseudo nationalists because he defended the weak and probably innocent Muslim men in law courts against accusations of terrorism.

Judges can be killed too, usually falling to those they have ruled against. Three US federal judges are on record as being murdered by those their judgements did not please. During the troubled period, the IRA killed three judges, including Lord Justice Sir Maurice Gibson in 1987. That’s a good reason that judges everywhere are accorded adequate personal security.

Indian judge B.H. Loya was hearing a fake encounter case when he died suddenly. The Bombay High Court is looking into allegations that he was murdered while the official records say that the 48-year-old judge succumbed to a heart attack. Loya’s family first feared that he might have been killed after turning down a bribe offer. They later said they no longer believed that to be so. There’s public outcry to investigate the death nevertheless, not least because the head of India’s ruling party stands named in the incident. Soon after Loya’s death in December 2014, his successor dropped the fake encounter case against BJP President Amit Shah.

The most telling comment on the cynical state of justice in India came perhaps from a man described as Babu Bajrangi, a self-confessed Hindutva zealot, who was caught in a sting operation carried out by journalist Ashish Khetan, now a member of the Aaam Aadmi Party. Bajrangi said on camera that he was denied bail on murder charges and that his leader would arrange the right judge to set him free. Cases have to be sometimes transferred to different states over fears that justice would not be delivered in a particular state in a particular court, a fear suggesting that judges are a subjective lot.

In the old days justice was delivered on behalf of the ubiquitous moneylender who had the thumb impression of the illiterate peasant on the book of accounts as evidence of money advanced. Indebted peasants are still committing suicide in India in droves, as they fear that the law overtly or covertly favours the creditor. The Portias are there to protect the poor and ignorant from wily Indian Shylocks but they are few and far between.

Judges often change their ideological preferences to comply with the doctrine of the state they serve. The head of the justice department in Nazi Germany was a former Bolshevik. With the rise of right-wing nationalism in India, a gradual ideological shift is perceptible in all institutions. The Rashtriya Swayamsewak Sangh’s Dattopant Thengadi set up the Akhil Bharatiya Adhivakta Parishad (All India Advocates Council) in 1992, ironically the year the Babri Masjid was demolished in defiance of the Supreme Court’s ruling. The lawyers’ body has produced several judges from its ranks. Justice Deepak Misra, the chief justice of India, seems to be an admirer of the RSS-backed advocates’ body as he was the chief guest at their annual function in Bengaluru two years ago.

Four most senior judges of the Supreme Court took an unprecedented step last week to address a news conference where they expressed the fear that Indian democracy was in peril. Emperor Akbar would not be amused.

On India's Supreme Courts: And then there were nine

Constitutions are enlarged and strengthened when courts act as brakes against majoritarian authoritarianism


Sanjay Hegde in The Hindu


In early 2014, Fali Nariman said to me in the corridors of the Supreme Court, “A government with an absolute majority will see a conformist judiciary.” Shortly thereafter, India elected a government with an absolute majority in Parliament.

Mr. Nariman prophesied based on past experiences. During the Emergency, the Supreme Court held in ADM Jabalpur that the fundamental right to life could be taken away or suspended. When asked by Justice H.R. Khanna if the right to life had been suspended during the Emergency, the then Attorney General, Niren De, had replied, “Even if life was taken away illegally, courts are helpless.” Four judges then succumbed to government power and failed to protect the citizen; Justice Khanna was the only dissenter.

The shame of that surrender has often been invoked against every judge who has subsequently held office. Justices Y.V. Chandrachud and P.N. Bhagwati, who were part of that Bench, apologised for that judgment after demitting office. But, as Salman Rushdie wrote: “Shame is like everything else; live with it for long enough and it becomes part of the furniture.” Judicial pusillanimity in the face of an authoritarian government was not entirely unexpected.

Pattern of retreat

The last three years have seen a rather conservative Supreme Court, which bears testimony to Mr. Nariman’s aphorism. The court chose to render ineffective challenges to demonetisation by referring the issue to a Constitution Bench. When lawyers beat up former JNU Students’ Union President Kanhaiya Kumar and journalists in the precincts of Patiala House, a mere stone’s throw away from the Supreme Court, the court chose to swallow its wrath. The court’s refusal to investigate the Birla-Sahara diaries, or to allow Harsh Mander’s plea to challenge Amit Shah’s discharge in a criminal case, all fit into this pattern of retreat. Possibly the sole exception was when the court struck down the National Judicial Appointments Commission Act.

At a time when civil liberties seemed to be again imperilled, people wondered whether the court would firmly stand on the side of the citizens who claimed that their fundamental right to privacy was being taken away by the Aadhaar database.

In response to the citizens’ challenge, the Supreme Court was told by the government that there existed no fundamental right to privacy. The government’s stand was based on M.P. Sharma (delivered by eight judges in 1954) and Kharak Singh (delivered by six judges in 1962). Both these decisions had seemingly held that there was no fundamental right to privacy in the Constitution. Later decisions of smaller Benches had, however, held and proceeded on the basis that there did exist such a right.

At least two generations of Indians grew up assuming that a fundamental right to privacy existed. But because of diverse judicial opinions, the matter had to be considered by a Bench of at least nine judges. Assembling nine judges is not an easy task given the abnormal workload and administrative disruption it causes the court. It took nearly two years for a Bench to be constituted, by which time the administration tried to compulsorily impose Aadhaar on every sphere of human activity.

The government took an extreme stand that no fundamental right to privacy existed and that the later judgments were wrongly decided. It was a submission of the sort characterised by Lord Atkin in his 1948 dissent in Liversidge v. Anderson, as an argument that “might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.” The government lost the argument 9-0.

The nine-judge Bench has unanimously held that the right to privacy is a fundamental right and clarified years of somewhat uncertain case law on the subject. It has unequivocally held that the doctrinal premise of M.P. Sharma and Kharak Singh stand invalidated. Nearly half of the 547-page judgment has been written by Justice D.Y. Chandrachud who has recognised that “the right to privacy is an element of human dignity”. Perhaps, even more crucially, Justice Chandrachud (joined by all the others on the Bench), has explicitly overruled the ADM Jabalpur judgment to which his father was a party. The judgment is also remarkable for its stinging criticism of the court’s view in Suresh Koushal, which had upheld the validity of Section 377 of the IPC. The challenge to Section 377 is pending before a different Bench.

What the judges held

Justice J. Chelameswar writes a wonderful enunciation of the rationale behind the Constitution, its Preamble, and the fundamental rights chapter. He points out that provisions purportedly conferring power on the state are, in fact, limitations on the state’s power to infringe on the liberty of citizens. Crucially, after holding that the right to privacy is a fundamental right, he states that the right to privacy includes, among other things, freedom from intrusion into one’s home, the right to choice of food and dress of one’s choice, and the freedom to associate with the people one wants to.

Justice S.A. Bobde holds that privacy is integral to the several fundamental rights recognised by the Constitution. He holds that in case of infringement, the state must satisfy the tests applicable to whichever one or more of the fundamental rights is/are affected by the interference. He also traces the right to privacy to ancient Indian texts including the Grihya Sutras, the Ramayanaand the Arthashastra.

Tracing the right to privacy to the Preamble and the fundamental rights chapter of the Constitution, Justice A.M. Sapre holds that the right to privacy is born with the human being and stays until death. He also holds that the unity and integrity of the nation can only be ensured when the dignity of every citizen is guaranteed through privacy.

Justice S.K. Kaul’s opinion makes a strong case for the horizontal application of fundamental rights. He observes that “digital footprints and extensive data can be analysed computationally to reveal patterns, trends, and associations, especially relating to human behaviour and interactions and hence, is valuable information.” He expresses concern over the use of such data to “exercise control over us like the ‘big brother’ state exercised.”

Justice Rohinton Nariman has rejected the Union’s argument that the right to privacy is not a fundamental right in a developing country where people do not have access to food, shelter and other resources. He holds that the right to privacy is available to the rich and the poor alike: “Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect. The recognition of such right in the fundamental rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority governments.”

In a mature democracy, conformist judiciaries are not always guaranteed to governments with a popular majority. Constitutions are enlarged and strengthened when courts act as brakes against majoritarian authoritarianism. The larger security of the state lies in the protection of every individual’s freedoms. The judges of the Supreme Court, as sentinels on the qui vive, have stood tall and repelled yet another attack on citizens’ liberties. Fali Nariman and Y.V. Chandrachud’s anxieties and reverses of the Emergency era may just have been put to rest.

Two cheers for the Supreme Court

Gautam Bhatia in The Hindu

On the 4th of November, 1948, Dr. B.R. Ambedkar rose to address the Constituent Assembly, and proudly stated that “the... Constitution has adopted the individual as its unit”. On Tuesday, this constitutional vision, under siege for much of India’s journey as a democratic republic, came within a whisker of destruction at the hands of the Supreme Court. But when all the dust had cleared in Courtroom No. 1, it finally became evident that Chief Justice J.S. Khehar had been able to enlist only one other judge, out of a Bench of five, to support his novel proposition that the religious freedom under the Indian Constitution protected not just individual faith, but whole systems of “personal law”, spanning marriage, succession, and so on. This view would not only have immunised instantaneous triple talaq (talaq-e-biddat) from constitutional scrutiny, but would also — in the Chief Justice’s own words — have ensured that “it is not open for a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”.

Had the Chief Justice managed to persuade one other judge to sign on to his judgment, we would have found ourselves living under a Constitution that sanctions the complete submergence of the individual to the claims of her religious community. A reminder, perhaps, of how even the most basic constitutional values, often taken for granted, hang by nothing more than the most fragile of threads. But if the relegation of the Chief Justice’s argument to a legally irrelevant dissenting opinion narrowly averted disaster, the separate opinions of three judges invalidating the practice of talaq-e-biddat gave us something to cheer about — but not much. By a majority decision, instantaneous triple talaq is now invalid, a significant victory that is the result of many decades of struggle by the Muslim women’s movement for gender justice. That is something that must be welcomed. However, the value of a Supreme Court judgment lies not only in what it decides, but also in the possibilities and avenues that it opens for the future, for further progressive-oriented litigation. In that sense, the triple talaq verdict is a disappointment, because even the majority opinions proceeded along narrow pathways, and avoided addressing some crucial constitutional questions.

The majority

Justice Rohinton F. Nariman, writing for himself and Justice U.U. Lalit, held that the 1937 Muslim Personal Law (Shariat) Application Act had codified all Muslim personal law, including the practice of triple talaq. This brought it within the bounds of the Constitution. He then held that because talaq-e-biddat allowed unchecked power to Muslim husbands to divorce their wives, without any scope for reconciliation, it was “arbitrary”, and failed the test of Article 14 (equality before law) of the Constitution. The practice, therefore, was unconstitutional.

Justice Nariman’s reasoning, while technically faultless, avoided the elephant in the room that had been ever-present since the hearing began. Under our constitutional jurisprudence, codified personal law — that is, personal law that has been given a statutory form, such as the Hindu Marriage Act — is subject to the Constitution. However, uncodified personal law is exempted from constitutional scrutiny. In other words, the moment the state legislates on personal law practices, its actions can be tested under the Constitution, but if the state fails to act, then those very practices — which, for all relevant purposes, are recognised and enforced by courts as law — need not conform to the Constitution. This anomalous position, which had first been advanced by the Bombay High Court in a 1952 decision called Narasu Appa Mali, and has never seriously been challenged after that, has the effect of creating islands of “personal law” free from constitutional norms of equality, non-discrimination, and liberty.

By holding that the 1937 Act codified all Muslim personal law, Justice Nariman obviated the need for reconsidering this longstanding position, even as he doubted its correctness in a brief, illuminating paragraph. As a matter of constitutional adjudication and judicial discipline, he was undoubtedly right to do so. However, it is impossible to shake off the feeling that the court missed an excellent opportunity to review, and correct, one of its longstanding judicial errors. It seems trite to say that in our polity, there should not exist any constitutional black holes. The basic unit of the Constitution, as Ambedkar said, is the individual, and to privilege state-sanctioned community norms over individual rights negates that vision entirely.

In a separate opinion — which turned out to be the “swing vote” in this case — Justice Kurian Joseph did not go even that far. He simply held that talaq-e-biddat found no mention in the Koran, and was no part of Muslim personal law. Effectively, he decided the case on the ground that talaq-e-biddat was un-Islamic, instead of unconstitutional — begging the question whether secular courts should be adjudicating such questions in the first place. If Justice Nariman’s opinion was narrow and technical, Justice Joseph’s was narrow and theological. Therefore, in a case that involved, at its heart, issues of the intersection between personal law, the Constitution, and gender discrimination, there is no majority view on any of these topics.

The dissent

This brings us back to the dissent. Not only did the dissenting opinion privilege community claims over individual constitutional rights, it also conflated the freedom of religion with personal law, thereby advancing a position where religion could become the arbiter of individuals’ civil status and civil rights. Here again, it had been Ambedkar, extraordinarily prescient, who had warned the Constituent Assembly on the 2nd of December, 1948: “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death... if personal law is to be saved, I am sure... that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extent beyond beliefs and rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

Ultimately, what separates religious norms and personal law systems — and this includes all religions — from the laws of a democratic republic is the simple issue of consent. This is why the Chief Justice’s conflation of religious freedom and personal law was so profoundly misguided: because, in essence, he took a constitutional provision that had been designed to protect an individual, in her faith, from state interference, and extended it to protect a personal law system that claims authority from scriptures — scriptures whose norms are applied to individuals who had no say in creating them, and who have no say in modifying or rejecting them. The Muslim women challenging triple talaq invoked the Constitution because there was no equivalent within their personal law system; the Chief Justice would have denied not only them that possibility, but would have denied to every other individual, who felt oppressed and unequally treated by her religious community, for all time — and told them, as he did in this case: “Go to Parliament, but the Constitution has nothing for you.”

At the very least, the Majority judgments did not close that window. For that, we must say: two cheers to the Supreme Court.

Indian sport’s Forever Men

Nirmal Shekar in The Hindu

Many of the sports administrative bodies are besmirched by feudal attitudes where the top guys have reigned for long and appear to claim ownership rights over their ‘property’


The best thing that has happened to sports in India in a long, long time — longer perhaps than many of us have existed on this planet — is the laudably idealistic yet remarkably pragmatic intervention of the Supreme Court into Wild West territory — the landscape of cricket administration.
So much of what the well-meaning lay people have expected of the men who control sports has been trampled under mercilessly and maliciously, that a good majority of sports-lovers in the country have found refuge in nihilism and come to believe that nothing will change in the state of affairs.

When you think that something has been transformed for the better, very soon you realise it is nothing more than chimerical and it might be foolish and useless to bravely make your way through the haze.

If sports politics is even more Machiavellian than Indian politics in general, then that should come as no surprise. For we resign ourselves to the fact that sport is not a matter quite as important as electing the country’s Prime Minister.


Sliver of hope

But just when we thought that it is a tunnel without an end, the Supreme Court, headed by its upstanding, noble Chief Justice Mr. T.S. Thakur (who retired recently) has offered us a sliver of hope here or there — in fact much, much more than what we may have come to expect 70 years after the country’s Independence.

A popular, veteran Indian sportsperson, who tried to get into the administration of his sport not long ago, put it succinctly the other day when I asked him what was wrong with sports administration in the country at a time when the nation’s richest, and perhaps one of the world’s wealthiest sports bodies, the Board of Control for Cricket in India (BCCI), was making front-page news for all the wrong reasons every day.

“You tell me what is right with it. It stinks. I shudder to think that such mismanagement, corruption, nepotism and chaos can exist in 2017,” he said.

Most well-meaning people in the world of sports, when asked the same question, not surprisingly come up with the same answer: “a total lack of professionalism.’’


Reasons for lagging

This is an over-arching judgement that seems to ignore the nuts and bolts of everyday affairs in major sports in the country. From experts down to lay fans, almost everybody has an opinion on why such a huge nation should not be among the leading performers in the world of sport. Infrastructure, money, attitude, culture…you can think of dozens of reasons why India does not stand tall in the world of sport.

Says Joaquim Carvalho, Olympian and hockey administrator “Sports governance in India lacks transparency and accountability. Most officials are not passionate about sports at all. They use this platform to keep themselves in the news and also indulge in corruption.

“I have a poor impression of sports governance because I have seen these officials as a player and later I as someone connected with the conduct of the game. They have vested interest and development of sport is never a priority for them. Basically, it helps them stay in the news, build connections and enjoy junkets. Sports governance in India is absolutely unprofessional.”

While it will be unfair to make a sweeping generalisation — there are a few sports that benefit from modern management where the administration is totally transparent in its business. But most are besmirched by feudal attitudes where the top guys have been the same since the days of your childhood, and they appear to claim ownership rights over their ‘property.’

‘Honorary’ positions are not ones manned by individuals with perfectly altruistic intentions. To even expect it is ridiculous. Even saints do what they do to get into the good books of the big, all-knowing, all-powerful man up there.


On an upward swing

There is a flip side to all this. Adille Sumariwala, IAAF executive council member and president, Athletics Federation of India, says, “Sports is on the upward swing in India. Television and the leagues in virtually all sports have increased the fan following. Children know the names of kabaddi players, not only cricketers. Television has brought sports to people, there is more awareness. It’s a matter of time before sports emerges much stronger. There are opportunities to make sport a career in life. And so sports is on the upswing’’.

But here is the catch. Do we have honest officials with a long-term goals in mind? It is indeed boom-time in Indian sports. But the launching pads, corporate support and fans’ enthusiasm may quickly evaporate if the quality of administration remains the same.

How many of our present sports administrators come in with a clear mandate and then move forward stridently to carry it out? Do they go through the same strict annual evaluation process as do brilliant business school graduates?

Success as sports administrators demands a few basic skills in areas such as communication, organisation, decision making, value system and team building.

“Indian sports administrators are special. I must admit that. They are in a category of their own,” said the late Peter Roebuck, my best friend among foreign journalists visiting India frequently, during one of our post dinner conversations.

What Roebuck referred to was mainly cricket but he was curious enough to want to know more and more about other sports. Leadership skills can be either cultivated or learned but the men and women who run our sports are keen on only one thing — staying where they are with a great love for being in the spotlight.

How many times have we seen sports bosses appearing prominently in photographs of athletes who return after world-beating success at airports across the country?

Long ago, a top Indian sportsman returning after winning the world championship told me something that was shocking. I asked him who the gentleman who was hugging him in the front page of a leading Indian English language paper? “I swear, I have never seen the guy before,” he said of a man who was a senior administrator in the sport.

Of course, the nameless one is part of the Forever Men club.

Supreme Court brings Indian cricket into the 21st century

Suresh Menon in The Hindu


The world’s most successful secret society has been given a lesson in transparency and that is cause for celebration.

No tears need be wasted on the panjandrums who have been running the Board of Control for Cricket in India and its State associations like personal fiefdoms.

The Supreme Court finally reeled in the long rope it had given the BCCI, and so tripped up its senior officials. If there was contrition among the officials, these remained unexpressed. Yesterday’s powerhouses will be tomorrow’s forgotten men, their frown and wrinkled lip and sneer of cold command erased forever.

Inevitably, some good men will be thrown out with the bad, and there will be much churning as the old order makes way for the new. The saner elements of the board will wonder if it had to come to this, when, with greater maturity and common sense, the BCCI might have emerged with some dignity.

For the BCCI brought about its own downfall, aided by nothing more than its hubris and cavalier disregard for the laws of the land. You cannot ignore a Supreme Court judgement, as the BCCI did, and hope that nothing will change. It wasn’t just arrogance, it was foolishness of the highest order.

Would past presidents like Chinnaswamy and Sriraman, Gaekwad and Bindra, Dungarpur and Dalmiya have allowed things to come to this pass? It is convenient to believe they wouldn’t. But there is false memory at play here, a harking back to a golden era that never existed. Ghulam Ahmed, former off spinner and board vice-president, put it succinctly, “There are no values in the board.”

The Anurag Thakurs and Ajay Shirkes are paying the price for the culture that men like those mentioned had brought into the BCCI. These men ran the best sports body in the country, and somehow believed that they had a divine right to do so. Players kowtowed to them, politicians and businessmen chased them, and they clung on to power with a touching desperation.

The current dispensation extended that culture and refined it. They, like their predecessors, failed to understand the connection between actions and consequences.

At any time in the BCCI’s eight-decade history, the Supreme Court could have stepped in and ruled as it did now. Accountability and transparency were never in the BCCI’s handbook for officials, but public scrutiny was not as intense as it is now, and in some cases the good that an official did outweighed the bad, and all was forgiven.

Brinkmanship — a tactic much favoured by the BCCI to bring other cricket boards and indeed the International Cricket Council to its knees — is not a strategy guaranteed to impress the Supreme Court. That the highest court gave the BCCI more than six months to comply with its order when it could have acted even as deadlines were ignored is a testimony to its benevolence.

But how did a three-time Member of Parliament, which is what Anurag Thakur is, and sundry other luminaries, misjudge the seriousness of the situation? Was this a proxy war fought on behalf of his political masters by Thakur, or was the board, recognising the inevitable, preparing for a scorched earth response? The first will have to remain in the realm of speculation till a lead actor in the drama spills the beans. We shall soon know about the second.

The BCCI’s death wish has been one of the features of the whole saga. Thakur came in as the bright, young face of the board. There was an energy about him which makes his fall a disappointment. At 42 he was the man who replaced the old guard. Yet, within weeks, the cozy club he had tried to break up when N. Sinivasan was in charge, quickly reshaped itself into a new cozy club.

His fall is a cautionary tale for those who set out to change the system but is absorbed by it. The Supreme Court’s ruling will also impact other sports which have been resisting change like the BCCI. And that is good news for Indian sport.
The domestic season has been unaffected by the BCCI’s problems. This has been the case traditionally, and is one of the true blessings of Indian cricket. There are enough dedicated officials to ensure that the show goes on.

A generational change has been forced upon the BCCI, which is otherwise happy to continue with sons and nephews (never daughters and nieces) and other relatives keeping everything in the family.

Now State associations will have to change their registrations where necessary, holding general body meetings in order to advance this. Legal procedures need to be followed. There is a temptation to believe that cricketers make the best administrators. This is a common fallacy. There are cricketers who have made excellent administrators, but being able to play the square cut is no guarantee of managerial skills. The names of corrupt cricketer-officials are well known.

There is a long road ahead, mostly uncharted. But a start has been made. The new system may not be perfect, but it is better than the old one. Accountability ensures that.

BCCI, Katju and Cricket in India

Suhrith Parthasarathy in The Hindu

The Board of Control for Cricket in India’s decision last week to appoint a former Supreme Court judge, Justice Markandey Katju, to “interact with the Justice Lodha Committee” and to “advise and guide” the BCCI on its affairs is, at best, an effort at prevarication, and, at worst, a subversion of the Supreme Court’s authority. Exacerbating the tension, following his appointment, Justice Katju, rather indecorously given his stature as a retired judge, on August 6 released what he termed as a “first report,” with “more reports to follow,” in which he declared the Supreme Court’s judgment appointing the Lodha Committee as illegal and unconstitutional.

It is one thing to critique the court’s judgment as an outsider; for instance, it is plausible to argue, even if incorrectly, that the court ought to have exercised greater restraint in interfering with the board’s affairs. But to do as Justice Katju has, to advise a party to openly disregard the Supreme Court’s verdict, presents a dangerous proposition, one that is far more threatening than any act of judicial overreach. What’s more, in any event, given the peculiar facts and circumstances surrounding the BCCI’s structure, Justice Katju’s assertion that the court has exceeded its brief also fails to pass muster. If anything, these developments exemplify precisely why the Supreme Court’s intervention in this case was justified.

Why we play sport

To understand why the Supreme Court thought it fit to appoint the committee presided by the former Chief Justice of India, R.M. Lodha, to inquire into, and to recommend changes, to the BCCI’s organisation, we must confront a few fundamental questions. Too often, amid the chaotic world of modern sport, we tend to lose track of why we play sport, why we watch games, why we revel in them, and why we invest so much of our emotions into seemingly pointless pursuits. We must first ask ourselves, therefore, what the abiding purpose of cricket is. What do we want from it? Is the sport meant for pure entertainment? Can it be commercially exploited by a band of the elite owing no responsibility to the public? Or do we want the sport to represent a higher, more virtuous purpose? If so, how are we to achieve these ends?

To take any sport seriously, and to ask such questions, seems to represent, in some ways, an incongruity in terms. In fact, many commentators considered the adjudication of the dispute concerning the BCCI and allegations of spot-fixing as a waste of the Supreme Court’s precious time. The public, they warned, was according more importance to cricket than it really deserved. But the danger, contrary to such counsel, is not that we are taking sport too seriously. It is that we are not taking sport seriously enough.

As the American academic, Jan Boxill, has argued, sport serves to establish a moral function for society. It is “an unalienated activity which is required for self-development, self-expression, and self-respect”; or, put differently, it is morally important because it is “the art of the people,” one that ought to be included in what Marx termed as the “realm of freedom”. In India, where cricket plays such a pervasive role, the sport would therefore have to necessarily be seen as a primary cultural good, one which, to borrow from another American, the philosopher John Rawls, is critical to the fulfilment of a person’s conception of a good life. In that sense, access to cricket has to be considered as an end in and of itself, and as not in any manner subservient to some other veiled purpose, especially entertainment or business. In his marvellous epic, Beyond a Boundary, C.L.R. James argued that cricket allows us a grasp of a more complete human existence, where social justice is a legitimate aim. To seize ownership of the game we must, therefore, hold cricket’s administrators answerable to standards of public law, a check that would help in bringing about within cricket’s province a more equal distribution of resources.

When it sat in judgment over the various shenanigans of the BCCI and its management of the Indian Premier League (IPL), the Supreme Court recognised some of these values inherent in cricket. For years, ever since its inception, the BCCI had functioned as its own master, as a sovereign whose diktats were decisive and unquestionable. As this dominion began to extend beyond India into a global clout, the inability to hold the board publicly accountable became graver still. Governments came and went, but legislative intervention has never been on the horizon.

A private society?

Until the Supreme Court intervened last year, every time the courts were approached, judges too vacillated, as the board bandied about its customary defence, one that Justice Katju has also invoked in his report: that the board is merely a private society, to which conventional standards of public law are simply inapplicable. Indeed, the BCCI, which was originally formed in 1928 as an unregistered association of persons, is now enrolled as a private body, under the Tamil Nadu Societies Registration Act of 1975. Today, more than 30 members, including public sector undertakings such as the Railways and the Services, subscribe to the board’s Memorandum of Association, which includes, among its objects, the promotion and control of the game of cricket in India, the encouragement of the formation of State and regional cricket associations, and, most significantly, the selection of the Indian national cricket team.

At first blush, the BCCI’s argument might appear to make sense. Traditionally, private societies are responsible only to their members, and it is for these clubs to determine for themselves what best represent the interest of their associates. Therefore, for any of the board’s decisions to stand the law’s scruples, all that is required is the concurrence of its members, which is to be secured through a procedure that the memorandum provides. When people outside the BCCI’s membership enter into independent relationships with the board — such as employment contracts or purchase of TV rights — those relationships would also, according to the board, remain purely in the realm of private law.

Yet, before the Supreme Court intervened last year, the BCCI, emboldened by this status as a supposed private body, consistently diluted the underlying values in cricket, viewing these as somehow inferior to the board’s grand project of commercially exploiting the sport. When, for instance, incidents of conflicts of interest within the board have been questioned, the board’s arguments proceeded on these lines: if the BCCI’s members are satisfied that a person who owned an IPL team could also contest and hold office as the board’s president, the courts, including the Supreme Court, simply lacked the authority to judicially review such decisions.

But in its judgment, delivered on January 22, 2015, which resonated amongst cricket fans around the world, the Supreme Court rebuffed these arguments. Not only did it haul up the BCCI and question the body’s standards of governance but it also explicitly ruled that the board was amenable to public scrutiny. “Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike,” wrote Justice T.S. Thakur (now Chief Justice of India) on behalf of the court. “Any organisation or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity.”

A clear purpose

Or in other words, what the court was really telling us is this: that cricket is a basic good, the access to which is critical to the fulfilment of a good life. When the court appointed the Lodha Committee, its intention, therefore, was to create a structure through which the sport can be made more accessible and more equal. The committee’s report, which was released on January 4, 2016, seeks to do just this. It recommends, among other things, that each Indian State would only be entitled to a single vote within the BCCI, a mandate that is likely to damage a coterie of power held by Maharashtra and Gujarat that have three associations each. What’s more, it directs the establishment of an apex council of nine members, overseen by a reputable chief executive officer, comprising three independent persons, with two from a newly constituted “players’ association”, and at least one woman, to conduct the day-to-day administration of the sport in the country; the institution of lucid norms within the BCCI’s constitution to regulate conflicts of interest, including the reduction in involvement from politicians; and, most critically, a more reasonable division, if not a complete separation, between the BCCI and the IPL.

The argument today, made in Justice Katju’s report, is that any change to the BCCI’s structure must come either from within or through legislative intervention. But neither of these, as history tells us, is conceivable. In bringing about a change in the board’s structure through the Lodha Committee’s recommendations, the Supreme Court isn’t making law. It is merely making accountable a body that enjoys a virtually state-sanctioned monopoly, which allows it to alter the fundamental nature of a property that it holds in trust for the public. It is astounding that the board would object to these recommendations, for all they do is establish a basic framework for good governance.

In the final analysis, we must ask ourselves this: do we want to see cricket as constituting an end by itself, as a sport that is both ethically and morally significant? If the answer to this question is yes, we must not only cause the BCCI to embrace the Lodha Committee’s recommendations but also push towards an even more revolutionary process of reform; one through which the game can eventually be brought closer to the common Indian public, where the sport’s ownership is reclaimed from those who have tarnished it beyond recognition.

Why the SC’s 377 verdict is actually a boon for the gay community

Jai Anant Dehadrai in the Times of India

Section 377 of the Indian Penal Code that criminalises homosexual behaviour is an archaic and cruel remnant of our colonial past, which ought to have been struck off from the penal-code decades ago. There are no two views about this.

But the question is, struck off by whom? Let us step back and assess the facts.

The Supreme Court’s verdict has left the LGBT community agitated and deeply hurt. Their expectation was that the Court would uphold the Delhi High Court’s verdict, which held Section 377 to be unconstitutional. To their dismay, this unfortunately did not happen.

The community has waged a painfully long battle against the extreme prejudice and cruelty they face in our society. Quite admirably, this fight for respect and equal rights has always been peaceful and dignified – never marred by the mindless violence that accompanies most ‘protests’ in India. No lives were lost. No buses were burnt. No riots were reported. Even post the verdict, the community assembled peacefully at Jantar Mantar, wearing black clothes as a mark of their disappointment.

In the immediate aftermath of the judgment, social activists and civil-rights lawyers have come out in unison criticising the Supreme Court. They are of the view that this verdict has stunted their efforts to bring equal rights for the Gay community. Some have even gone on to say that this decision, in one sweeping stroke, “has taken back the fight 100 years.” Senior lawyers, who shall not be named here, have also openly questioned why the Court “missed a crucial opportunity for reforming a societal prejudice.”

But the underlying message in Justice Singhvi’s 25 page judgment appears to have been lost in the din of voices competing to denounce the verdict. Some have termed it medieval and even immoral. But absolutely no one has challenged its legality. It is absolutely crucial that we uncover this subtle truth that we’re all missing.

For a truly lasting and meaningful change, the gay and lesbian community must realise that their means must justify the righteous end they seek. Had the Supreme Court struck down the offending Section of law and played to the galleries, the victory would merely have been a pyrrhic one. The community would have lost the ethical high-ground in their quest for respect and equality.

Here is why.

Simply put, the judiciary has no business to enter into the realm of law-making or policy formulation. It is only because our elected parliamentarians have been so busy doing everything else apart from their jobs, that the Supreme Court is forced to interfere and protect the common citizen. This sad trend has become so pervasive, that now we’ve come to expect it as the norm. This is absolutely unconstitutional and against everything Ambedkar – the original champion of civil liberties, stood for and fought for. Justice Singhvi’s judgment is a loud wake-up call for the entire country – reminding us that elected representatives sitting in Parliament on tax-payers money are tasked with the responsibility and authority to make or amend laws. Relying on the Supreme Court to decide these legislative and policy matters is akin to us giving a free pass to our politicians who would rather shirk their responsibilities than take hard decisions. 

The Supreme Court via this judgment has correctly shifted the spotlight onto our legislators and their shameful lethargy to evolve our legal systems. IPC 377 must certainly go – but it is the Union Executive which must rise to the occasion and effectuate this change. It is indeed shocking to hear national politicians like Rahul Gandhi  criticise the Court’s order – when it is in fact the job of his government to take the initiative and scrap the law. I am surprised that we’ve blinded ourselves to this obvious political hypocrisy.

We, as Indians ought to be grateful for a judge like Justice Singhvi, who displayed staunch moral courage in the face of contrarian public sentiment to do the right thing. His reasoning does not comment on the merits of the case – which is clear as day that the law ought to be changed by legislators. The judgment of the Delhi High Court completely ignored the doctrine of separation of powers between the organs of government, which frowns upon unnecessary judicial activism by over-eager judges.

Parliament must take into account the genuine grievances of the LGBT community and not only repeal this draconic penal provision but also put into place a policy framework to protect the rights and dignity of this crucial component of our society. 

Like Gandhiji said, ‘the means must justify the ends.’

Novartis loses landmark patent case in India

India’s Supreme Court dealt a significant blow to Western drugs firms on Monday when it rejected an application by the Swiss pharmaceutical company Novartis to patent an anti-cancer drug.

Until recently patent and intellectual property disputes have been limited to HIV drugs as campaigners have accused Western firms of profiteering while poor patients in developing countries die. The Novartis ruling however marks a widening of the conflict to other proprietory drugs. Photo: Alamy

By Dean Nelson, in New Delhi

1:51PM BST 01 Apr 2013

22 Comments

The company said the decision raised serious, wider implications for the industry and reflected India’s ‘growing non-recognition’ of intellectual property.

Its ruling, however, was hailed by campaigners and Indian pharmaceutical firms as a victory for the country’s poor who cannot afford expensive Western medicines. Indian drug firms sell generic versions of Western drugs for up to one tenth of the price.

India’s trade minister Anand Sharma yesterday hailed the decision as an “historic judgment” which reinforced Indian laws preventing companies from extending patent protection unfairly by minor tweaks to their products, a process known in India as ‘ever-greening. Y.K Hamied, chairman of Cipla, one of India’s largest generic drugs companies, said the ruling will “pave the way for affordable medicines in India.”

Novartis however yesterday warned the ruling will discourage expensive investment in new drug treatments. The decision “provides clarification on Indian patent law and discourages innovative drug discovery essential to advancing medical science for patient," it said in a statement.

“The primary concern of this case was with India's growing non-recognition of intellectual property rights that sustain research and development for innovative medicines. As a leader in both innovative and generic medicines, Novartis strongly supports the contribution of generics to improving public health once drug patents expire,” it added.

The company had applied for a patent for a new tablet version of its anti-cancer drug Glivec, which had taken years to develop, it said. The Supreme Court however ruled that the tablet did not amount to an advance sufficient to merit a patent. Around 16,000 Indian cancer patients use Novartis' Glivec - 95 per cent free of charge, the company said, while an estimated 300,000 use cheaper Indfan versions.

Until recently patent and intellectual property disputes have been limited to HIV drugs as campaigners have accused Western firms of profiteering while poor patients in developing countries die.

The Novartis ruling however marks a widening of the conflict to other proprietory drugs. Merck, the US-based drugs company is facing a dispute with the Indian pharmaceutical firm Glenmark which has launched a generic version of its diabetes drug Januvia which is almost a third cheaper.

“It's all about interpretation of section 3(d) of the Indian Patent Act,” said Ran Chakrabarti, a commercial lawyer based in New Delhi.

“Essentially, it says that you can't tweak something that already exists and then patent it, if it doesn't enhance the known efficacy of that thing, or result in a new product. No doubt lawyers will have spent a lot of time pouring over the meaning of 'enhance', 'efficacy' and 'new product', but it looks as if the Supreme Court has ruled that this is old wine in a new bottle.

"Drug companies are going to have to come up with something pretty unique to get patent protection, and while that's good news for consumers, it pushes the threshold for innovation northwards,” he added.

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A Just Order

Editorial in The Hindu

The Supreme Court order rejecting a plea to grant patent protection for Glivec, a cancer-fighting drug from Novartis, is a landmark. It will greatly strengthen the quest for access to affordable medicines in India. The decision affirms the idea that a patent regime loses its social relevance when a drug is priced beyond the reach of the vast majority of a country’s people. That pharmaceutical companies employ high pricing to limit the number of beneficiaries of “blockbuster” patented molecules and even older “evergreened” medicines is an irony, because making additional copies of a drug is not expensive. On the other hand, cost control and dispensing of essential medications in government-run health facilities is affected, because many States have no centralised procurement system. It is unsurprising, therefore, that less than 10 per cent of medicines sold in India are under patent, while the vast majority are branded generics. The court order should prompt producers of patented drugs to move towards liberal licensing and low cost manufacture in India, the pharmacy of the South that produces Rs.100,000 crore worth of medicines annually and sells nearly two thirds within the country. It is a matter of concern that at least a dozen pharmaceutical innovations used in the treatment of cancer, HIV/AIDS, and Hepatitis B and C are not affordable to even the upper middle classes, and impossible to access for the poor.

It would be a gross distortion to paint the Glivec order, which follows the compulsory licensing of Bayer’s drug Nexavar, as an innovation killer. There is evidence to show that major pharma companies recover more than the cost of innovation of a drug in a single year from the United States market alone. Moreover, the costing done by industry has come in for criticism from scientists and policymakers on the grounds that the bloated, irrelevant investments of recent decades are used as the baseline to make calculations. It should not, as the industry claims, cost a billion dollars (and take a dozen years) to produce a new drug; the informed estimate is a third of that figure. The contested field of drug discovery now calls for greater scrutiny of costs and therapeutic value, and control of prices through various legal avenues available under the Indian Patents Act and the Trade-Related Aspects of Intellectual Property Rights as confirmed by the Doha Declaration. It would naturally strengthen the case for grant of patents and consensus pricing, if the industry opens its books for verification. Until the golden mean is reached, governments with vast populations that are denied access to medicines due to economic reasons can justifiably use unilateral price control mechanisms.

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Calling big pharma’s bluff

 e

DWIJEN RANGNEKAR in the hindu

   

 

The lesson from the Supreme Court ruling on Gleevec is that pharmaceutical multinational corporations need to focus research on genuine innovations rather than on ways to evergreen their patents

The much awaited Supreme Court judgment on Gleevec has been delivered. Novartis has failed in reversing the rejection of its patent. And, predictably — like a scratched record — there have been suggestions that pharma investments in India will dry up and take flight to China. At each twist of this case, Novartis has produced such bluster. We need to pay attention to the judgment as it is a nuanced handling of difficult questions concerning a hastily drafted section — Section 3(d) of the Indian Patents Act, which allows new forms of existing drug formulations to be patented only if they result in increased efficacy. The judgment adopts a gentle caution in parsing out Section 3(d); yet, it is firm in reading 3(d) as a “second tier of qualifying standards” for patentability. Further, the judgment also stands out by reprimanding the “artful drafting” of patent applications adopted by big pharma.

CHRONOLOGY

To begin, it is useful to draw out some of the chronology concerning Gleevec that the judgment reveals. The story of the patent begins with Jurg Zimmerman’s invention of derivatives of N-phenyl-2- pyrimidine-amine, one of which in freebase form was called “Imatinib,” and together constituted a U.S. patent application (no. 5,521,184) granted on May 28, 1996 (which, the judgment terms “the Zimmermann Patent”). Subsequently, a European patent was also acquired. Later, a patent application was filed for the beta crystalline form of Imatinib Mesylate (the subject in dispute) in January 2000. Initially rejected, the patent was awarded in May 2005 following Novartis’s appeal to a U.S. appellate court. What is interesting is that the filings for new drug approval, submitted in April 1998, was for Gleevec, and a filing for original drug approval in February 2001 was for Imatinib Mesylate. Confusing as this may seem, the judgment highlights this to establish that Imatinib Mesylate was covered by the Zimmerman patent and that Gleevec was its market name. Any remaining doubt, the judgment notes, is extinguished by the application for patent term extension: “This application leaves no room for doubt that Imatinib Mesylate, marketed under the name Gleevec, was submitted for drug approval as covered by the Zimmermann patent.”

CONTEXT

One of the useful aspects of the judgment is in distilling the significance of “context” in giving meaning to statute. Early on, it notes that to understand the import of the various amendments introduced in the third amendment to the Patent Act, 1970 — to come into full compliance with TRIPS — it is “necessary to find out the concerns of Parliament … What was the mischief Parliament wanted to check and what were the objects it intended to achieve through these amendments?” In this respect, the judgment recalls not only the heated Parliamentary debate, but also the concerns of public health practitioners the world over, and of public statements and petitions from U.N. agencies and civil society organisations. With India being the leading global supplier of bulk drugs, formulations and generic Antiretrovirals (ARV), the global concerns layered domestic worries about affordability of drugs.

Evidence in a widely cited study by the National Institute of Health Care Management, Changing Patterns of Pharmaceutical Innovation, is telling. Between 1989 and 2000, the U.S. Food and Drug Authority approved 1,035 new drug applications — of these, 65 per cent contained active ingredients that were already on the market (i.e. incrementally modified drugs), 11 per cent were identical and only 15 per cent were considered a “highly innovative drug.” Mischief like this results in a patent thicket around a single molecule to delay generic entry which Section 3(d) seeks to avoid. Consequently, the Supreme Court heralds Section 3(d) as a “second tier of qualifying standards for chemical substances/pharmaceutical products in order to leave the door open for true and genuine inventions but, at the same time, to check any attempt at repetitive patenting or extension of the patent term on spurious grounds.”

The significance of this rendering of Section 3(d) is borne out in the Supreme Court’s mix of caution in parsing out the section and firm pronouncements on patent drafting. Section 3(d) states, the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such process results in a new product or employs at least one new reactant.

And, has the following explanation appended: For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy.

MADRAS HC READING

Recall that the Madras High Court’s reading that efficacy is a pharmacological idea associated with the ability of a drug to produce a desired therapeutic effect independent of potency, i.e. “healing of disease.” And, the Intellectual Property Appellate Board (IPAB) had noted with respect to enhanced efficacy that “it is not possible to quantify this term by any general formula” and that an assessment would “vary from case to case.” In revisiting these readings, the Supreme Court also had the views of Shamnad Basheer (as an intervenor-cum-amicus) and Anand Grover (Counsel for Cancer Patients Aid Association). The latter had argued for a strict reading of 3(d) which would see efficacy entirely in pharmacological terms. While Basheer agreed that all advantageous properties may not qualify under 3(d), he held that increased safety and reduced toxicity should be seen favourably. Even as the Supreme Court recalls the concerns that author 3(d) — thus, urging a “strict and narrow reading” for medicines — it prefers to delay definitive pronouncement and allow for jurisprudence to develop on this matter. Yet, it is firm in noting that enhancements in the “physical properties” of a product would render a patent application foul of 3(d).

It is here that the evidence — either in the patent applications or submitted later through affidavits to Controller were found wanting in establishing enhanced efficacy. Take for instance the “Massimini” affidavit, filed before the Controller and directed at 3(d), where two points emanate. First, that the beta crystalline form of Imatinib Mesylate is highly soluble, and second that it demonstrates a number of improved physical properties (e.g. flow properties, thermodynamic stability). Yet, in probing, it becomes clear that the comparison is to Imatinib — and not Imatinib Mesylate, where the latter is the “known substance” in terms of 3(d). Which leaves the issue of increased bioavailability — and here the court finds “there is absolutely nothing on this score apart from the adroit submissions of the counsel” and dismisses the argument.

ON DRAFTING

A final aspect of the judgment that needs highlighting is the pronouncement concerning drafting. The careful interrogation of the sequence of events leading to the patent application for the beta crystalline form of Imatinib Mesylate opened up gaping holes in the claims made by Novartis. These included that Gleevec was “‘disclosed” in the Zimmerman patent and this point is also implied by Novartis’s legal notice to NATCO in the U.K. to stop production of its generic version, VEENAT. In response, Novartis argued that even while Gleevec could be claimed by the Zimmerman patent, it was not fully disclosed in an enabling manner. Thus, seeking to differentiate between claims and disclosure. This wonderful legalese was eloquently rejected by the Supreme Court; both, in terms of U.S. legal history that was cited and in terms of the argument’s merits. And it’s useful to quote at length: “We certainly do not wish the law of patent in this country to develop on lines where there may be a vast gap between the coverage and the disclosure under the patent; where the scope of the patent is determined not on the intrinsic worth of the invention but by the artful drafting of its claims by skilful lawyers, and where patents are traded as a commodity not for production and marketing of the patented products but to search for someone who may be sued for infringement of the patent.”

LAPSES

Looking back over the last several years, it is useful to recall the several lapses committed by Novartis. It failed to heed petitions by health groups and civil society to drop the case. For that matter it failed to also heed the wisdom of its own shareholders who urged it to withdraw the challenge. And at the Supreme Court along with losing the case, we also find that the Gleevec patent application “appears to be a loosely assembled, cut-and-paste job, drawing heavily upon the Zimmermann patent.”

The judgment should be well noted and celebrated. It recalls the context of 3(d) and reminds us of the matters of concern that punctuated its crafting. While the section may have been hastily drafted and insufficiently specified, it has the elements to withstand ever-greening. Pharma companies will always be rewarded for their inventive work and effort — and by drawing in a secondary qualifier, they will have to focus their efforts on genuine inventions rather than overlapping patents.

(Dwijen Rangnekar is Associate Professor of Law at the University of Warwick, U.K. E-mail: d.rangnekar@warwick.ac.uk)