Indra Sawhney, which turns twenty-one on November 16, has the unfortunate legacy of being a decision of the Supreme Court that stands as much for circumvention as citation. This is perhaps natural, considering the decision’s feeble attempt to build a check dam around the flood of populism that reservations had become.
The Court ought to have categorically held: caste is not class. All those buts that followed — “but no reservations in promotions”, “but no reservations in excess of 50%”, “but no reservations for the creamy layer”, “but considerations of merit cannot be ignored” — and all those buts that subsequent decisions relied on Indra Sawhney to carve out — “but no consequential seniority”, “but no shifting of unfilled vacancies to the next year” — have been consistently eroded by State Legislatures, Parliamentary enactments, and egregious constitutional amendments that read more like provisions from a service law manual.
So, what do we really learn from this? That decisions of the Court, even the highest court, can rarely bring in checks on populism unless they are nurtured by parallel institutions, and subsequent benches that understand the essence of the earlier ruling. The failure of Indra Sawhney lies in both. It was fairly clear that our legislators and governments would not do anything much beyond going down the path of aggrandising certain segments of the “votebank” without really empowering them. As an unintended consequence of sorts, it became a matter of pride for this “class” to proudly declare on the floor of the house that the several, patently unconstitutional, enactments and amendments were indeed meant to override anti-egalitarian views expressed by the Court in Indra Sawhney and its successors.
The less predictable letdown was the Court’s response in M. Nagaraj v. Union of India, where it upheld reservations in promotion and the “constitutionalisation” of this opinion through Article 16(4A). The Judiciary laid to waste the right occasion to send out the strong, and legally right, message that equality meant the same regardless of the political process, that it would not make any difference whether values and rights were violated through the mechanism of a statute or permanently butchered through a constitutional amendment, and that decisions such as Indra Sawhney are sacrosanct and untouchable. By upholding Article 16(4A), the Court relegated Indra Sawhney to the dustbin, giving an easy way out to every Parliament of the future that wished to disregard whatever little was left of this decision’s salutary checks and balances.
This legacy is more of a constitutional tragedy, as we continue to witness mindless legislative overriding, especially in the volatile space of “reservations”. The most recent example is the response to P.A. Inamdar v. State of Maharashtra, a well-reasoned decision of the Supreme Court that immunised private educational institutions from excessive governmental interference and especially, “reservations” in the admission pool. Soon thereafter, Article 15(5) came through, proudly proclaiming the power of the State to usher in social justice through reservations.
Sadly, this is the story that the decision in Indra Sawhney passes on to future generations. The answer to unbridled reservations therefore, lies elsewhere, not in our courts, and as much as Indra Sawhney strove for otherwise, this continues to be the case.
Three days ago in Hauz Khas in New Delhi, on Chaudhary Dalip Singh Marg:
Me: “Bhaiya, Supreme Court chaloge?” (Brother (?), will you go to the Supreme Court?)
Auto-driver: “Kaunse waale?” (Which one?)
As I informed him that there is only one Supreme Court in India, ‘India Gate ke paas’ (‘Near India Gate’), I thought to myself whether there was any chance that the auto-driver was subtly driving home the point that the Supreme Court being located only in one place made it relatively inaccessible for the rest of the country, and that smaller benches all over the country was the way to go?
Now, that would be an enlightened auto-driver. He may be right or wrong about Supreme Court benches, but by this standard, the ‘ordinary litigant’ would likely be a truly informed and empowered one!
Of course, what gave the auto-driver away was ‘Ek Saket mein bhi toh hai’ (‘There is one in Saket as well.’). It would have meant precious little to him to learn that ‘Woh toh District Court hai’ (‘That is a District Court’). If the rule of law presupposes that citizens have a basic awareness of their courts, we have a long way to go.
The astute use of technology will doubtless be critical in making courts more accessible. The Supreme Court’s recently released Display Board application for Android mobile devices seems to be an attempt in this direction. After it was released (with some fanfare), I imagined that the app would look something like this:
HomeCurrent Status – All CourtsCurrent Status – Court-wiseSearch by Judge Name
Search by Court Number + Item Number. Images courtesy Akhil Verma.
At the moment, the application replicates the Supreme Court Display Board as on the website. One hopes that it is a work in progress, with an update to follow soon (there is a Java version as well).
There are harmless quirks, and there are harmless quirks that can result in a case being dismissed for ‘non-appearance’. Imagine that you are an advocate on your very first visit to the Supreme Court. You are nervous, but prepared. You have two ‘matters’ – one each in Court 14 and (the currently unoccupied) Court 15. It looks like you will not have to run around too much because the court rooms should be adjacent.
Beware! As you bound up the stairs from the main entrance, you will see Court 1 (the Hon’ble Chief Justice’s Court) in front of you, flanked by Courts 2 and 5 to your left, and Courts 3 and 4 to your right.
You eventually figure out that Courts 6-15 are accessible through a long corridor leading to the other end of the compound. The first room to your left after the corridor, thankfully, is Court 14. Phew! Next to that is… Court 12. Confused? Where is Court 15, or even 13 for that matter! You run along further, crossing 10, 8, and 6. Then 7, 9, 11, and 13, after which is 15 (more than 100 metres away from Court 14).
Why this sequence? Beats me, though a Court by any other number would be just as cramped for space.
(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)
One can imagine these words being uttered by a salesperson, or even printed in bold on an advertisement for the Delhi Police. It is not what one would, as a matter of fact, expect to hear in a court room; definitely not from the presiding judge.
Yet, remarkably, in the Registrar’s Court No. 2 a few days ago, when a petitioner-in-person lost his cool — agitated and frustrated that his case would again not be listed before the Supreme Court for hearing because service of documents was not complete on all respondents — these simple words were what the presiding judge had for him.
These words are remarkable, not because the presiding judge sensibly preferred them over a stern rebuke to the petitioner-in-person for violating the decorum of the Court, nor simply because they demonstrate an acknowledgement of the emotional pitfalls of litigation, especially for those courageous enough to fight their own cases without a lawyer; these words are remarkable because they force all of us to examine the question “What are we here for?”
What is the purpose – of the Supreme Court, its judges, its staff, its advocates, its litigants, its reporters, its commentators, and other stakeholders? In assessing our respective roles in the administration of justice, is there a lens we can use that is not teleological, and if not, what does this lens show us?
Au contraire, are we fooling ourselves by evoking a singular, grand purpose of participation in the administration of justice for all players, if only because such a purpose is a Sisyphean one? Perhaps it is more appropriate to accept that the administration of justice is nobody’s responsibility. Things are what they are for no cause attributable to anybody in particular. Therefore, individual actors need not be mindful of their actions beyond their explicit obligations.
By referring to current judgments and institutional developments at the Supreme Court, as well as opinions, comment and anecdotes, this fortnightly blog will offer a space for reflection.
If you are in any way associated with the Supreme Court, chances are that your association has lasted longer than mine (barely a year now). Your thoughts, suggestions, and — I hope there will be no need for these — corrections, are most welcome.
Next fortnight
Have you tried the Supreme Court’s Android app?
5, 2, 1, 3, 4, 14, 12, 10, 8, 6, 7, 9, 11, 13, 15 – if these numbers mean nothing to you, you are yet to take your first steps in decoding the Supreme Court’s institutional grammar.
(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)
Today would have been as good a day as any to hear the verdict of the Allahabad High Court in the Ayodhya title suit, writes Shadan Farasat.
Can two parties, who have been unable to come to a settlement for over 60 years, come to a settlement through an intervention of the Supreme Court? Two judges of the Supreme Court could not agree on an answer yesterday when they heard a Special Leave Petition to stay the impending decision of the Allahabad High Court on the title suit over the land where the Babri Masjid stood until 1992. The court eventually passed an order that abides with the Supreme Court’s tradition of issuing notice when two judges disagree on a grant of notice. The Court issued notice and granted a stay on delivery of judgment by the Allahabad High Court until September 28, 2010, when the matter is listed next before the Supreme Court. The Attorney General of India has been requested to be present in the Court for the next hearing.
Rear view of the Babri mosque before it was destroyed in 1992. Photograph by Shaid Khan.
But first, some background information. The Babri Masjid, as it was called, was built by Mir Baqi in Ayodhya in 1528 on the orders of Emperor Babur. It stood there as such until December 6, 1992 when it was demolished. On January 7, 1993 the President of India issued the Acquisition of Certain Area at Ayodhya Ordinance through which 67.703 acres of the Ram Janambhoomi-Babri Masjid Complex, as it came to be called by then, was acquired by the Central Government. Existing litigation in respect of this area abated. However, the President of India, under a reference under Article 143 of the Constitution, sought the opinion of the Supreme Court on whether such action on behalf of the government would be constitutional. In Ismail Faruqui v. Union of India, AIR 1995 SC 605, a five-judge bench of the Supreme Court held that this action of the Central Government was unconstitutional to the extent it abated all pending legal disputes before courts and referred the matter to the Allahabad High Court for decision on the multiple title suits, some of which had been pending since 1949. The Supreme Court has now stayed this judgment of the Allahabad High Court until September 28, 2010.
The odds against the petitioner before the Supreme Court were indeed high. A similar request had been made before the Allahabad High Court last week, and the majority had rejected it, with costs! If the High Court does not give the decision by October 1, one of the judges, Justice D.V. Sharma, will retire and the matter will have to be heard in its entirety once again by a reconstituted bench. The new decision will take a few more years. The Allahabad High Court had already tried mediation and conciliation, but failed. The petitioner, who is one of the twenty-seven parties in the suit, also had its bona fides in question, because it had failed to actively participate in the proceedings before the High Court. Finally and most importantly, none of the other parties to the suit were willing to consider a settlement at this belated stage and political settlement by various religious leaders and as many as three former prime ministers had also failed.
So what purpose did one of the judges of the Supreme Court see in coercing the parties into another (potentially) fruitless mediation process? The only answer is the resolution – or postponement – of possible law and order problems on the delivery of the judgment, if the judgment is seen as favouring one community over the other. However, unlike in 1992, the Central Government has already taken adequate measures, and all political parties and religious groups have advised restraint and promised to abide solely by the legal process. The mood of the country is also very different from 1992. So today would have been as good a day as any other to pass this judgment. While the Allahabad High Court decision would not have resolved all the disputes in respect of the issue, particularly relating to the emotions that may be attached to it, it would have been a step in that direction. By staying the decision of the Allahabad High Court, the Supreme Court may inadvertently be providing fodder to those who want to milk the issue politically in the future. While the Supreme Court does some more thinking until September 28, the country awaits anxiously.
The state of Kerala is brewing with controversy relating to the printing and sale of illegal lotteries. Every story relating to the issue has found its way to the front page of local newspapers and has become the topic of much debate between candidates contesting in the local body elections scheduled for this month.
Rumour has it that when a difference of opinion arose between the two promoters of Bhutan State Lottery – Monica Lottery Distributers and Martin Lottery Distributers, the former shadow-whistle-blew the latter’s irregularities. But as the controversy snowballed with the judgment of Justice P.R. Ramachandara Menon of the Kerala High Court, all interested parties buried the hatchet and fought against the judgment, which had restricted the number of lottery draws permissible in a week, to one.
Image here and on article banner originally published on rowland_rick’s photostream on Flickr. Image published under a Creative Commons Attribution 2.0 Generic License.
Apart from rumours, there have been consistent news reports about Megha Lottery (sub-agent of Martin Lottery) printing illegal lottery tickets at Shivakashi and at other private printing presses. The law specifically stipulates that lotteries should be printed only at presses approved by either the Reserve Bank of India or the Indian Bankers’ Council. Taking note of these press reports along with the fact that the government of Bhutan had not renewed the agreement with Martin Lottery, but had appointed Monica Lottery as the new promoter, the state government refused to accept advance tax from Megha Lottery. Payment of advance tax under Section 10 of the Kerala Tax on Paper Lotteries Act, 2005, is an essential condition for the transport of printed lottery tickets into the state of Kerala.
The Congress-led opposition were up in arms against this refusal, since Monica Lotteryhad been appointed in March 2010, and the government had taken action only in September 2010, implying that Finance Minister, Thomas Issac, had permitted Megha to sell illegal lotteries during the intervening period.
Megha Lottery, faced with indirect prohibition on the sale of lotteries, approached the Kerala High Courtfor a writ of mandamus directing the government to accept the payment of advance tax. The government objected to the writ petition, contending that Meghawas not a ‘Promoter’ of Bhutan State Lottery. The Single Judge (P.R. Ramachandara Menon, J.) of the Kerala High Court, after recording the submission of the government of Bhutan, that Meghawas indeed its promoter, allowed the petition in part and directed the Kerala Government to accept advance tax to the extent permissible under sub-section 4(h) and sub-section 4(j) of the Lotteries (Regulation) Act, 1998, which was a Central legislation.
Sub-section 4(h) states that ‘no lottery shall have more than one draw in week’ and sub-section 4(j) states that ‘the number of bumper draws of a lottery shall not be more than six in a calendar year’. The Single Judge, relying on the aforesaid provisions in the 1998 Act, went on to say that the practice of conducting more than one lottery in a week under different schemes and different names was not permitted under the Act. According to the judge, sub-section 4(h) was incorporated in the statute to protect poor and illiterate people, who belong to the lower strata of society from the lure and glitter of becoming rich on a new dawn. The ‘cooling period’ of one week is provided to prevent such people from gambling with their life. Therefore, the promoters of lotteries were directed to furnish a statement showing the details of the draws (under all names or schemes, put together) to be conducted during the succeeding month under sub-section 10(1) of the state Act while remitting advance tax.
This judgment was challenged before the Division Bench of the Kerala High Court, both by theKerala Government as well as by the Megha Lottery Agency. The Division Bench, consisting of Justices Thottathil B. Radhakrishnan and P. Bhavadasan, vacated the direction of the Single Judge restricting the number of lotteries per week. The Division Bench held that the state or its promoter was entitled to organise any number of lotteries and any kind of lotteries. According to the Division Bench, Section 4(h) of the Lotteries (Regulation) Act, 1998 did not have any impact on the number of lotteries or schemes the government could organise.
The Division Bench of the Kerala High Court held that it was the Central Government that is duty bound to ensure that no provisions of the rule or Act were violated. According to the court, any action against any lottery or promoter had to come from the Centre, although the state was not powerless in informing the Centre about such violations. The High Court also dismissed the appeal filed by the State Government and upheld the finding of the Single Judge that Meghawas the promoter of Bhutan Lotteries, and issued a direction to the State Government to accept the advance tax from the promoter without any interest. The court observed that no special contract was required to engage a promoter to distribute the lottery. The court concluded that it was for the State and Union Governments to ensure that there were no violations of the Lotteries’ Regulation Act and other rules “so that vulnerable sections of society are not exploited through the temptations offered by lotteries.”
It requires no special legal dissection to understand that the judgment of the Division Bench of the Kerala High Courtis rendered in blatant violation of statutory provisions. Although the judgment is apparently delivered to protect vulnerable sections of society from the temptations offered by the lotteries, the court has subtly helped the lottery tycoons by nullifying the statutory restriction imposed on the number of lottery draws permissible in a week. The State Government is expected to approach theSupreme Court, which may render finality in this issue.
The main drawback in the legal framework that regulates the conduct of lotteries is the absence of any power for the State Governments. Under the Central Act of 1998, a State government can either declare the entire state as a lottery-free-zone or let all the lotteries reign freely in the state. The reason for such restricted power is that state governments alone were permitted to organise and conduct lotteries and not private individuals. Therefore to prevent any unfair discrimination between competing state governments, the Central Act denied them powers of regulation.
In reality, it is not the state government, but their private promoters under the seal of the government, that are organising and selling lotteries. Although the State of Kerala has devised the mechanism of advance tax to indirectly regulate the conduct of foreign state lotteries and their promoters, the courts have consistently stuck down any positive action regulating their conduct, as the same is within the executive realm of the Central Government.
Therefore, in order to save the poor and ignorant of the society from being cheated through the sale of illegal lotteries, the Central Act of 1998 has to be amended granting appropriate powers to state governments to regulate conduct of lotteries organised by the private promoters.
P. Thomas Geeverghese is an advocate at the Kerala High Court.
Indra Sawhney, which turns twenty-one on November 16, has the unfortunate legacy of being a decision of the Supreme Court that stands as much for circumvention as citation. This is perhaps natural, considering the decision’s feeble attempt to build a check dam around the flood of populism that reservations had become.
