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“We don’t have a precedent to show that Supreme Court will save the country”, Shanmugham D Jayan – Part II

“We don’t have a precedent to show that Supreme Court will save the country”, Shanmugham D Jayan – Part II

Murali Krishnan

Shanmugham D Jayan is a visiting faculty at National University of Advanced Legal Studies (NUALS) Kochi and Cochin University. He teaches Constitutional Law, Jurisprudence, IT Law and Law of Taxation. He is also a lawyer specialising in taxation and frequents courts and authorities of first instance. An expert in Information Technology Law, he has three publications to his credit.

In this free-wheeling chat with Bar & Bench’s Murali Krishnan, Shanmugham speaks on myriad subjects including legal education, quality of the Bar, the judiciary and the Supreme Court.

Q. You graduated in Physics and then went for law. How did that happen?

A good number of lawyers who belong to my generation, including me, ended up doing law because we could not get admission for other courses.

After I graduated in Physics, I was planning to do MCA from Cochin University. However, in the application form there was an option to tick against other entrance exams including LL.B. and MBA. I ticked against MBA and LL.B. apart from MCA. I did not make it for MCA and MBA but got through LLB.

After LL.B., I thought I would do MBA. Then again there was an option to tick against LL.M. which I did (laughs).  This time, however, I got through MBA and started attending classes. The results of LL.M. entrance exam came later and I cleared that too. Some of my batch mates from LL.B. had also cleared the LL.M. entrance. They coaxed me – “Nee vaada namukku LL.M. padikkam” (“Come on man, we will study LL.M. together”). So, then I left MBA and pursued LL.M.

Q. How significant is LLM to lawyer?

LL.B. is just another ‘course’. But LL.M. is not like that. If you ask me, I would say that LL.M. transformed me in a major way. LL.M. brings about a significant difference in one’s approach. I have no regrets in pursuing LLM instead of MBA. MBA would not have brought about such a transformation.  If I had pursued MBA, I would also have been a typical white collar stereotype.

Q. Is 3-year LLB advantageous over 5-year LLB?

It is a very troublesome question. Everybody thinks law is an easy subject – that cannot be farther from truth.

Laws of physical science are observed while laws [of social science] are imposed. A lot of thought has to go into it before imposing a law. Newton did not have to force the apple to fall on his head. He only had to find out why it fell down.

In physical science, we are always in the process of identifying causative factors. But in society, we impose the law. Our reasoning based on which we impose the law, is a wisdom which we acquire after identifying all relevant factors. I purposefully used the word ‘wisdom’ instead of knowledge or information because wisdom is a word of much wider connote. Importantly, it is not one single subject that governs that wisdom. It could be a very big subject or umpteen subjects.

Let me give you a small example. In the movie, Aadaminte Makan Abu, there is a big criticism of legal system.

That criticism comes from a person who is a very rustic simpleton. In the movie, he applies for passport. When the postman comes to his house to deliver the passport, only his wife was present. The scene then cuts to the post office where his wife and he are waiting. He then says what is the rationale behind the law which does not allow the passport to be delivered to his wife?

It is actually a very strong criticism. On one hand, we say family is the backbone of society, wife and husband are one etc. but the legal system does not allow the wife to collect something sent to the husband.

Interestingly, he does not have any formal training or education to make such a criticism. But he makes such a statement because as per the social norms in that small hamlet, husband and wife are one and the same and he is not aware of separate legal personality of the husband and the wife.

Now coming to your question, in 3-year LLB we have people from different education backgrounds coming to study law. In 5-year LLB, we have students with basic schooling being taught law.

In 3-year LLB, since students from various streams are being taught law, if they interact properly in the classroom, everybody gets inputs and imbibe from each other. But if they do not, then depending on the stream and background from where they hail and their understanding of law, they will contribute in different ways. That will, ultimately, not be beneficial to the system because as part of the Bar or the Bench, if they respond differently in similar situations depending on their backgrounds, it might affect the homogeneity of the system.

So, the system as a whole does not benefit much from training these students from different background in one classroom. All we get is people who think differently but equipped in law. In a precedent based system, are such products relevant?

If we can give them good training and ensure that there is proper interaction in class, we could get good products. But from our experience, it is proven that it is not possible.

In NUALS, there was this bright student. But the said student would not attend lectures but instead go for moot court competitions etc. One day, I spoke to her and said “this has to change and you should attend classes regularly”.

She said that she is doing well in academics though she is not regularly attending classes.

I replied “Yes I agree. But I am saying you should attend class so that other students in the class can learn from you. So you should come.”

Q. Why do you think LL.B. is just another “course”?

Is it possible to think beyond books in a 5-year course? No. It is not possible if we take average intelligence as a benchmark.  As far as 5-year course is concerned, what we try to impart to students is various attributes of law and what is understood and recorded by experts in the field. But to inculcate critical thinking beyond a point is not possible in a 5-year course.

I think it is best to target such a learning process at the Masters level.

Q. But I had a feeling that we 5-year LLB students also started thinking critically or at least had the urge to do so, particularly after the second or third year of our course.

Yes, you will definitely! I will answer that through a theory. Why are many law graduates ending up as politicians and the other way round, why do those who want to enter politics study law?

Consider a person who is part of a political party. He or she may have many personal convictions. But once he is part of a political party, he sets aside his personal convictions when voicing his opinions through the political party’s platform. Many ‘leftists’ might have right leaning beliefs, likewise many on the right might have leftist convictions.

Similarly, when a lawyer conducts a case, he might have his own views. But when he conducts the case of his client, he puts forward the case of his client vehemently despite his own views about the case.

Patrick Devlin, an English jurist, has said that, these two communities, that is lawyers and politicians, have the capacity to reason and justify or defend views notwithstanding that they themselves might not agree with the views which they are canvassing.

So as a lawyer, I might be aware that my client has committed a wrong, I might even be hating him. But I will argue for him and put in my 100 per cent. I might not have my heart in it but I will use my brain for him.

So, that is more or less what happens towards the final year of your LL.B. course. You start developing the capacity to set aside your personal conviction and think beyond that.

Q. A problem that is frequently raised is regarding shortage of teachers at National Law Schools.

What I am going to say is hearsay and am not disclosing names. When there was this attempt to establish National Law School, one academician opposed it strongly because of the thrust given to LL.B. Program and job placement immediately upon completion of the same. He was of the opinion that there would be no one to teach after some time. Anyway NLS, Bangalore and other National Law Schools were established. Later, during a private discussion, the first professor lamented at the shortage of good teachers and the second professor told him how he had warned him beforehand. The first professor went silent for a moment before asking:

“Sir, are there any good students in your University who would be willing to teach?”

So yes, it is very a big problem.

Recently, I received a very nice story on Whatsapp. It is about the Goan Chief Minister, Manohar Parrikar and two farmers, a father and a son, who grow watermelons in Parrikar’s village. When Parrikar went to his village, he found that the size of watermelons had greatly reduced in the recent years.

He was wondering what the reason could be. He soon found out. When the father used to grow the watermelons, he used to separate the good, large ones and give it to villagers. But the son, thought he could sell off the bigger watermelons too. He didn’t realise there was a reason why his father had done what he did. If he gave the bigger watermelons to the villagers, then the seeds of those watermelons would stay in the village. So, again he would get good watermelons.

But the son did the farming his way, and the watermelons deteriorated in size and quality over time.  Same is the case with National Law Schools.

I have voiced this concern in many places. After LL.B., the best of the students, get jobs and go their way.  Then there would be none left to teach. We have to find a way out to solve this problem.

We have to identify, through a scientific process, those LL.B. students who are eager and have the aptitude to teach. They have to be taken care of by providing scholarship for LL.M., creating tie-ups with Universities and absorbing them into teaching posts in those Universities.

Q. Another development we are witnessing now is establishment of private law schools. Will they ultimately end up replacing these National Law Universities?

There is no danger in the establishment of private colleges. NLSs are government controlled factories established by a statute and while the other is factory by a private venture. That’s all. There is no other difference. Let both systems [NLS and private colleges] continue and let us see which one survives.

Moreover, there is a positive side to this. National Law Schools don’t get good teachers nowadays. But they have been around for so long, and they still haven’t done anything to produce good teachers.

But private sector colleges might not sit back like that. They have a profit motive, and students who go there will also demand quality for the kind of fees they are made to pay. Demand for good faculty would definitely be one of the demands by the students. This might ultimately emerge as a path for creating quality teachers.

Q. But our legal community is largely mediocre.

Many who study law, be it the 3-year or 5-year, don’t take it seriously. Law is a vast subject. I remember my Professor’s words – “what was the object of French Revolution? To amend CrPC. Lords and serfs were being treated differently by law in France and punished differently – so basically the issue was amendment to CrPC”.

In my opinion, an in-depth analysis is required whenever we assert something with regard to law. Whether we are doing that or not is debatable. Even those occupying the highest echelons, who are duty-bound to analyse and make a deep study do not do that. Their thought process is also very shallow and that is a dangerous.

Q. Can you explain?

I will give you an example relying on the concept of Henry Maine’s ‘status to contract’. According to that the subjects free to contract among themselves. Thus “status to contract” essentially means let the people interact as they please. In such a scenario, the reach/growth of a person is a direct function of his capacity.  The system is unconcerned. In the long run, anyone can be anyone and it will depend on the individual’s capacity.

The utility of this concept could be explained based on USA. People with motivation and entrepreneur skills came to a place with natural resources. There were no existing structures to be protected there unlike, say England.

Hence, every individual was given freedom as per the prevalent circumstances/ situation. So, what is due to him depends on that person and the situation – hence the basic law/ document in such a place has the concept of “due process”. Hence, the capitalist concept which has only a larger framework but no protective gear like licensing raj, subsidy regime or the larger object that there should be equitable distribution of resources.

But in India, there were some existing structures and the need to protect many things. Hence, ‘procedure established by law’, socialism etc.

However, in the 1970s, our Supreme Court for highlighting personal freedom read ‘procedure established by law’ as ‘due process’. This was something which the Constituent Assembly had expressly rejected.

So my question is, who brought in open economy here? Dr. Manmohan Singh in 1990s or Indian judiciary in 1970s?

Another very good example is Public Interest Litigation. One of its champions was Justice VR Krishna Iyer. However, during the last NDA government’s tenure, there was a relook at Constitution and Justice VR Krishna Iyer headed the revamping of Part III.

Justice Krishna Iyer suggested norms regarding streamlining of ‘dilution of locus standi/ PIL’. It was a clear indicator that he had realised the negative effects of the can of worms opened by him.

So, at higher levels, legal professionals should not restrict their thought processes based on their background – education or social. We, the legal fraternity, don’t have Royal society of Science or IEEE to set standards or guide us forward. Hence, it is all the more important for those in the higher echelons to ensure that the standards set are high.

Q. If I ask you where the Supreme Court started getting its basics wrong, what would be your answer?

Laying down Rules for interpretation!

There is a provision and there is a rule for interpretation of the provision. But when we look at these rules for interpretation [in India], we realise that those rules for interpretation are also judicial decisions. So I write a book, and hand it over to someone else to read. If I give that person the right to decide how to read or understand that book, then what is my significance?

In our system, the right to enact [laws] is with the Legislature. The right to interpretation is given to the judiciary. However, the judiciary has not stopped there. It has gone beyond its role and has vested in itself, the right to decide the rules for interpretation. It is like giving a blank dictionary to the court and allowing it to decide the meaning of every word. This can be very damaging.

The concept of “Read law as it is” which is prevalent in Civil Law System is not present here. In the long run, we don’t know where it will take us.

I cite this example regularly but I am repeating it here. When I light a torch at night towards the sky, even a small change in the position of torch will drastically change the position of the beam at higher altitudes. The same is the case here.

The Rules of Interpretation alone was the reason for not relying on Constituent Assembly Debates for the interpretation of Article 21. Had it had force, the present ‘due process of law’ concept would not have been part of Article 21.

So, in my opinion, at least the rules of interpretation should not be decided by courts.

Take the case of Article 32. Article 32 states that if any Part III right of a citizen is violated, and he approaches Supreme Court “by appropriate proceedings”, Supreme Court can issue its prerogative writs to extend remedy to the aggrieved. So Supreme Court has only one power – to give remedy. This is what the Article 32, which Dr. Ambedkar described as the most significant Article in the Constitution, says.

But what is happening now? All Part III articles including Article 21 have been interpreted and given very wide scope not envisaged by the Constitution makers.

Further, the Court has also diluted the concept of locus standi.

The Article requires that a person who is approaching the court should do that through a proper process/ course. But the Supreme Court has now started relying on anything and everything which they hear or read somewhere to invoke Article 32 jurisdiction.

So ultimately, the Supreme Court is deciding everything, from the scope of the right, to who is affected and what the procedure is. The power to give remedy was already vested in them by Article 32. If all these rights are being exercised by the Supreme Court, then what is the need for Article 32?

Q. In that context, what is your take on the Basic Structure doctrine – does it not come in the way of the popular will of the elected representatives of people?

Absolutely. Does the Constitution envisage a concept called Basic Structure – no. Glanville Williams in his book ‘Learning the law’ refers to Alice in Wonderland. There is a character Humpty Dumpty who says something to the effect, “I will say something, and I will say what I said”.

The situation in Kehsavananda Bharati is comparable to that. A 11-judge Bench decided something. In order to overcome that, a 13-judge Bench was constituted. Then a judgment comes with a wafer thin majority of 7-6 in which they interpret the majority judgment as laying down the Basic Structure doctrine. [That itself is arguable and there is difference in opinion as to whether a ratio is there or not].

But assuming there is a ratio by the majority, the said ratio is that there is a “Basic Structure which cannot be altered and that there are certain elements/ feature which are part of Basic Structure. But the catch is “that list is not exhaustive and we will decide what all will fall into that net as and when any case comes before us”. And they keep expanding its scope using the doctrine.

There is a statement by Justice KK Mathew (though in a different context) – “We (judiciary) are a creation of the Constitution”. He is using that statement to hint that Parliament is also a creation of the Constitution. So, both the Parliament and the judiciary are creations of the constitution and should function within their spheres.

In the Constitutional scheme, the amending powers are vested with the Parliament. Supreme Court and High Courts are vested with the power to decide whether the Parliament is exercising those powers in consonance with the Constitution.

However, what the Supreme Court has done is to go beyond what Justice KK Mathew stated and used it as a prop to hold “we are a creation of the Constitution, so are you. Hence, you cannot destroy that which creates you.”

But what it conveniently forgets is that though the Parliament is a creation of the Constitution, it is vested with a power which judiciary does not have – to amend the Constitution. Subsequently, what happens in Keshavananda Bharati is that the judiciary seems to have forgotten that it is a creation of the Constitution; it is all about “you (parliament) are a creation of the Constitution, you should work within it, you cannot modify it”.

What is preposterous is it there is no proper answer to why it (Parliament) does not have the power to amend what it calls the “Basic Structure”; it is just a statement by the Court. What is the rationale behind that statement? Nothing, it is a mere statement. And the Basic Structure is founded on that statement.

There is a movie by Ingmar Bergman by the name Fanny and Alexander. The following statement from that movie comes to my mind:

“On a flimsy ground of reality, imagination spins out and weaves new patterns.” It is an apt analogy for Basic Structure doctrine which has no Constitutional backing whatsoever.

Q. But are there any real dangers due to the Basic Structure doctrine?

In modern world, there is only one major system which has not undergone marked structural changes – that is England. The concept of revolution has never trickled down into England. And what is special about England is that it has an unwritten Constitution, and that affords flexibility.

I don’t know if you have read this one Panchatantra story. The story goes like this: There is a strong, tree, and a small, weak tree. The strong tree pokes fun at the smaller, weaker tree. But in a thunderstorm with strong winds, the weaker tree bends while the stronger tree gets uprooted.

So, weakness is sometimes strength, especially when it is a capacity to adopt to changes.

Bringing the same analogy to our discussion, we have a basic document. Leave that document to be amenable by the persons who are voicing the will of the people. Let them decide so that the Basic document changes with time as per the will of the people. So, what will be the result?

That document will exist and a revolution will not be needed to change it. But when the Court is saying that Basic Structure cannot be changed and they are clinging on to that concept and its ingredients and also adding new ingredients as and when it pleases, the Court is actually advocating a revolution. Because if people want to change any of those ingredients, then there is no other way. And that is the biggest danger of the Basic Structure doctrine.

Q. But what about the times we live in? Is not such a doctrine necessary to protect against practical problems that majoritarianism poses – like trying to lasso the judiciary, flatten rights of minorities etc.

There are provisions for protection of religious and linguistic minorities in our Constitution – Articles 29 and 30. If you take any standard Constitutional textbook, the introduction to Articles 29 and 30 generally begins with “how you treat the minority is the yardstick for determining the correctness or appropriateness of this democratic system”. That is wrong.

In a democracy, a majority government is a political majority, not a religious or linguistic majority. Religious and linguistic minority is actually determined by the strength of religion or language. Democratic government is determined by whether it is political majority or minority. Hence, when we say that the treatment of religious or linguistic minorities determines the quality of a democratic system, it is incorrect.

However, when the political majority is actually a reflection of religious/linguistic majority, then the dividing line between political majority and religious/linguistic majority blur and controlling factor becomes one and the same.

That is when the apprehension raised by you becomes relevant. Now when such a government is wielding their power to impress upon majority, they might be in a position to do anything and that is definitely a threat.

The framers of our Constitution, have tried to bring in some form of control by including certain provisions in the Constitution. However, a democratic system essentially equates to will of the majority. “Let the wish of majority prevail”– it is as simple as that.

Now, if we end up in a situation wherein the political majority is a religious or linguistic majority, and they start doing things according to their whims and fancies, even to the extent of destroying the system itself, then the only option is to face it.  The Basic document may be able to lengthen the life of the system to some extent; It will buy you some time, nothing more than that. It will not be able to stop the inevitable.

However, there is another aspect to it. Those who divide the system or subjects based on language or any other criteria are in for doom. Today, we start with religion, say Hindu or Islam religion. Do you think that if Hindu religion alone prevails in a place, that state/nation will survive? Soon next [division] will emerge – upper and lower [class/caste], and then within that the next [division]. Subsequently, there will be divisions based on language and so on and so forth. There is no stopping that. And the last surviving one will be fighting himself.

There is that famous cartoon, in which a religious bigot after killing people from other faiths is chopping off his own limbs. That would be the case.

Q. And you don’t think the Supreme Court or any Constitutional institution would be able to control it?

I seriously doubt the capability of the Court to effectively address such a situation. I don’t need to go beyond ADM Jabalpur to buttress my point. It is a case about which I talk a lot even in Constitutional law classes at NUALS.

That was a time when the executive was in full might. We all know who the sitting judges were – they were the so-called champions of human rights. And they fell on their knees before the might of the executive. One judge said, about the power that they are still holding but emergency declaration only took away the right of the detenues to approach them. Justice Chandrachud even specifically said, “Furthermore, we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed, well fed, and well treated is almost maternal.” Late Justice Bhagwati, subsequently confessed that he decided that case wrongly.

In his Justice Khanna Memorial Lecture of 2009, former Chief Justice MN Venkatachaliah said the decision deserved to be “confined to the dustbin of history”.  How are we supposed to believe and trust an institution like that? Even the parliament, in our democratic system, has never become an absolute failure like that.

After Emergency was declared and problems arose, how did the country recover? It was not because of Supreme Court’s intervention, it was because the citizens interfered.

We don’t have a precedent to show that this institution [Supreme Court] will save the country. On the other hand, we are having the precedent to claim to the contrary. Then why should we have faith in this institution? Definitely, the line of thought in Keshavananda Bharati that ‘there is a Basic document, and that document has certain constraints, and somehow the document needs to be protected” is very good (though it might be flawed). But I am totally against entrusting the Supreme Court with that duty.

If the Supreme Court had said that x, y and z forms part of Basic Structure and cannot be changed in that [document], and it is closed once and for all, then I would have been fine with it. But the problem is that the Court has left it open and is having power to add more into its ambit. So they have the power to change it again.

I fully agree with you when you say that in a majoritarian era, it is dangerous to throw this document to the executive to amend it as it pleases. But entrusting the task of guarding the document with the Supreme Court through Basic Structure is I something I don’t agree with. The Supreme Court has not proved its mettle yet.

Q. Do you hold the same opinion as far as the system evolved by Supreme Court for appointment of judges is concerned?

For advocating Collegium system, the Supreme Court has relied heavily on separation of powers. But that logic is completely wrong. What is meant by separation of powers is independence in functionality.

They arrived at the interpretation [of primacy of CJI’s opinion] by beating around the bush. Time has proved that it was better left to the Executive or the Parliament. I haven’t looked at it from a statistical perspective. Yet from a broad glance, it seems to be very obvious that majority of current judges are somehow connected with earlier judges.

Let me give you another glaring example – the BCCI case. We all know that in India, most Sports Associations are facing lot of problems and are mired in mismanagement and controversies. Why is it that the Supreme Court selected BCCI alone for its corrective work.

There are crores of cases pending in the courts in this country. Why should such an institution interfere in the affairs of another institution which is financially strong and has promoted sports successfully? BCCI was doing its job successfully to a limited extent, right? And it is not that BCCI was running on government money. In fact, it was paying taxes to the government. If at all there was a need for interference, it should have come from the executive.

Q. How did NUALS happen?

KNC Pillai sir, who was my teacher, was involved in charting the syllabus when NUALS was being set up. Back in the early 2000s, people were not very adept at computers. Pillai sir told me that the students need a paper that could be useful in terms of computer education. I helped him with that and that is how we have the subject, Information Technology for Law Professionals at NUALS.

Since Pillai sir was involved in drafting the syllabus, he also recommended a list of ‘suggested faculty’. For IT for Law Professionals, he gave my name though I was not aware about it.  When the concerned semester classes started, Registrar of NUALS rang me up and told me that my name has been recommended for Information Technology for Law Professionals. That is how it began.

I taught the first batch. While I was teaching the second batch, Professor Leela Krishnan sir who was teaching Constitutional law had some inconvenience and asked me to fill in. I took a few classes for the first batch in the subject of Constitutional Law.

I always wanted to learn and teach jurisprudence since it is a subject which I like a lot. So I told Balakrishnan Sir, who used to teach jurisprudence, that I would like to take jurisprudence classes for the second batch.

Q. Do you prefer teaching or practicing?

Teaching, there is no doubt about it.

Q. When you come to take classes, do you have a plan in mind? This technique of story-telling, is it planned or it happens naturally?

The story telling part is never planned. I read a fair deal. I am very forgetful about ordinary things but remembers silly things which others miss. Whenever I teach or interact, these examples pop up due to that. That is how this habit of story-telling came about.

But I do come to class with a plan in mind regarding which topics/ area should be covered.

Q. What is one tip you have to offer pedagogue?

Everybody makes mistakes including me.  We may also miss some points. But what we teachers should keep in mind is that when we don’t know something, we should be brave enough to admit that. When students ask a question and one does not know the answer, he or she should not beat around the bush. If you admit that you don’t know, that in itself will give you confidence. Further, the pressure that comes before the lecture with “What all questions are likely to be asked, have I missed out something” etc. can be avoided.

Another important thing to be kept in mind is that if a student presents a point of view which is better than the teacher’s point of view, then it should be acknowledged/accepted. We teachers also have to learn from everyone including students. Even as adults we learn quite a bit from children.

Q. Your “Life is Beautiful” posts on Facebook are a big hit.

As far as I am concerned, the world is very good. In my opinion, if we interact with each other unselfishly and truthfully, we can accommodate everyone. In my house, everyone eats non-vegetarian food, except me. However, I cook non-vegetarian food for them. I have seen people eating vegetarian food express disgust when they see others eating non-vegetarian food. What is the need for that? I have some traits and beliefs, somebody else has different traits and beliefs. We do not have to protest or oppose another person to follow the path which we prefer.

Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist.