Saturday, April 11, 2020

In hot pursuit of truth



Introduction

Look at a world where the assumptions are: All lawyers lie; auditors fudge accounts; civil contractors use substandard materials; corporate hospitals loot; doctors are negligent; politicians plunder; shopkeepers cheat. The boast however is, ’Only I am different. I do not do any wrong but others do.’ If we must limit our analysis to what pervades our courts in our search for truth and justice, we will come by a shocking revelation that very few believe truth is attainable. The judicial system is not engineered to securing truth at all times. The provisions for reviews before the same court and appeals and revisions in higher forums are attempts to substitute what the first court found as true or just to something of what you believe to be true or just. If the appellate court reverses the judgment on a question of fact, it, in effect, finds error in what the lower court found as true. If a further appeal restores the first court's finding, it means that the 1st appellate court has not properly appreciated the facts. What makes these quick reversals possible and how do we minimise them? What are the courts tasked with, is it to find truth and nothing but truth or truth by preponderance of probabilities or true beyond reasonable doubt? Even a person not legally trained will know that these expressions are not synonymous. Policy makers have set different goals for different types of proceedings through systems of law and evidence. We will examine now why there are different standards of proof and how do we acquire skills to get only at the truth and nothing but truth.

Truth is absolute; standards of proof are not

Truth is absolute. Honesty and integrity which are but its by-products are also absolute. If there is a component of untruth even to the minutest degree, it ceases to be true. We cannot measure the concept in relative terms. The human behaviour that brings conflicts are on account of disparate underlying interests and varying positions that we take  and they are not necessarily on account of dialectics of what is true and untrue. What comes to a head in litigations are the assumed positions of what are right and wrong as perceived by the respective parties. The tussle between rights and wrongs in all their permutations, (such as right v right, right v wrong, wrong v right and wrong v wrong,) play themselves out in every litigation. The process of proving a right or wrong may however surely involve proving what is true. The standards of proof are set by law as a matter of policy or what the society accepts as just. While there cannot be different scales of truth, there could be assessment of how close to truth the incident sought to be proved is. You keep pushing the notch up towards absolute truth depending on the predetermined scale of what is feasible to obtain. At the lowest rung, where a civil liability for the effect of what is perceived as wrong is strict, the standard proof is minimal. Where there is liability for an act which is perceived as heinous, and the punishment ought, according to moral standards of society, stringent, there shall be exacting standards of proof.

Nature of liability determines standard of proof, three broad approaches

Strict liability situations

In all matters where liability is strict and where the person suffers a harm is more vulnerable or the person whose operations involve inherent risks that expose a large body of persons to physical or mental harm, the requirement of proof of events is minimal. Welfare legislation intended to relieve persons of economic deprivation cast strict liability on the person for whose benefit the victim was engaged in the action in the first place or whose operations caused the injury. The defendant may not be a wrong doer at all but made liable all the same. A passenger in a railway train who suffers an injury or meets with death in an 'untoward incident', a workman who suffers an injury in the work place during or in the course of employment, a person who is harmed by a chemical manufactured by a person whose trade is regulated by law by requirements of licensing are all compensated without raising a question of whether there was any negligence or wrong committed by the person. The Railways Act 1989 that compensates the injured victim or the deceased passenger expressly states through S 124 and 124A of the Railways Act that in any action for relief against the railway administration, it shall not be necessary to prove the negligence of the railways for the act that resulted in personal harm. Under the Employees' Compensation Act 1923, a workman who suffers a fatal injury in the course of or out of employment, notwithstanding that the employee did not observe the standards of safety laid down by the employer make the latter liable in term of section 3 of the Act. Here, it is the relationship of employee-employer that is fulcral to imposition of liability. Public Liability Insurance Act 1991 also makes the liability norm strict for victims of injury by the operations of the owner whose industry is notified under the Act. In all these cases, there are minimal requirements of proof of factual situations, such as bringing a nexus between the accident and injury. If there is any doubt, in a given set of circumstances, there shall be invariably presumption drawn in favour of the victim. The enquiry into the fact of the matter is under played.
Therefore, if in a railway incident of a fall from train results in injury or death, it is immaterial that the death arose by a fall while boarding a train or while de-boarding it. Again, if there is a dispute whether he was a passenger with a ticket or not and if there is a minimal prospect of a loss of ticket  in the manner of how the accident took place, possession of a ticket and lawful authority for travel will be presumed. Under the Employees' Compensation Act 1923, if an employee was in the course of duty as a driver of vehicle suffered a heart attack, the presumption will be that the death was on account of pressures of work and in the course of employment. If a member of public suffers skin irritation by the chemical substance manufactured by an industry, even the causation will be presumed unless proof is adduced that the infection cannot be caused by such a chemical. In all these above examples, the fact that is required to be proved is presumed, the liability to prove negligence of the defendant is dispensed with and the truth is taken as self evident. A situation that speaks for itself may arise in any situation of strict liability that is referred to above or by the given set of circumstances, even if there is a higher standard of proof necessary such as when the negligence of the defendant has to be established, For example, the vehicle which had caused the accident had admittedly a brake failure or when the driver of a vehicle drove against a pedestrian was walking on the kerb or the vehicle involved was driven by a person  that did not have a licence to drive. In all these situations, the fact that is required to be established shall be taken as res ipsa loquitur.

Proof by preponderance of probability

Push the notch a little higher from situations where there are no presumptions drawn and the plaintiff who seeks for a relief in a civil court shall have to bring evidence regarding circumstances and conduct of parties that comport with the inference probablising the existence of the fact. For instance, In a dispute relating to property where there are rival claims under two wills of the same person by two parties pitted as plaintiff and defendant, the court that finds both wills to be true may find nothing false about the case of the plaintiff or the defendant but if the will of the defendant is later in point of time to the plaintiff's, the defendant's will shall prevail. However, if the court finds that one of the contesting parties knows that the will propounded by him was later modified or cancelled by a later will but still propounds the will as the last will, he has adduced false evidence. The same shall be the conclusion if the court finds that one of the wills was not executed by the person whose property is the subject of bequest. The normal disposition of the court is decree or dismissal depending on which of the wills propounded by the parties is accepted or rejected. The court sifts evidence and the opinions swing from one to another, when it weighs the probabilities of whose version among the two carries more weight for coming to a particular conclusion. The court may have its moments of prevarication but it picks the side that seems more plausible. Truth is not discarded but even if not self evident, the court believes something to be true on preponderance of probabilities.

Proof beyond reasonable doubt

In criminal cases, the standard of proof is high because, if the offence which a person charged with is proved, it will, in most cases, result in loss of personal liberty by confinement in prison which is perceived as more stringent than a liability that a person suffers by payment of damages or fine. The presumption of innocence is to ensure that the prosecuting agency shall always prove the guilt of the accused with no doubt lurking in the mind of the court that the accused alone had committed the offence. The focus suddenly is not proving a set of facts by positive evidence but creating doubts about the facts proved. The defence need not disclose its own defence, though in some cases, they are attempted to be done. It is sufficient that the case as presented by the prosecution is doubtful in some key aspects, such as say, the presence of witnesses produced at the place of occurrence to be eligible to be cited as a witness in the first place, the time of occurrence, the prior enmity of the witnesses to the accused, etc. The existence of doubts themselves shall lead to the benefit of doubt to the given to the accused. Here the truth is not unravelled. Doubts dominate to cloud the perception and the court gives up truth as not possible to be elicited with certainty.

Court's responses to the situations

If the court finds the witnesses on the one side have not spoken the truth, it says so on appreciation of the quality of the witness’ version and records a finding that it does not believe the version of the witness. This belief is not at all times on objective factors, when there are no documents to contradict a version. If the witness says that he saw a particular incident and it turns out that there is documentary proof against such version where he was proved through photographs that he was in some other place, there was hotel booking in his name, there was airline booking showing the time of arrival in that city, then the preponderance of probability is against the version that he saw the event. In the same set of circumstances brought before court, each one of the documentary pieces of evidence could be proved to be false and fabricated. Or if there were no documents but a merely a version by another that he had seen him in another place, we have one version against another; oath vs oath, as it is said. It is anybody's guess how the judge will decide. Documentary evidence is invariably stronger only because, manufacturing a false document is more difficult than uttering a lie. Spoken word has less value than the written instrument. The assumption always is that a person could be lying under oath but there are less chances that he manufactures a false document and puts it across as genuine evidence. The standards of proof in civil and criminal cases vary because, the outcome in both the types of cases are also different; the way that the cases are presented are different. The nature of reliefs are different. The tools of investigation are however the same. The Evidence Act allows the same procedure for letting in evidence. Witnesses are brought to state on oath truth and nothing but truth. The effect of untruth as far as the witness is concerned is the same in that perjury knows no distinction between civil or criminal cases.     

Tools for arriving at truth

Casting the burden of proof

In all civil matters, the manner of how the trial process pans out is well structured by the Code of Civil Procedure which will declare how the issues are required to be framed. Summoning witnesses follows soon after the issues are settled depending on how the burden of proof is cast. In the criminal cases, framing of charge brings a focus at the trial on what is required to be proved and nature of burden of proof shall depend on some statutory presumptions.

The Evidence Act places the burden on the person who wants a judgment on the existence of certain fact or on proof of certain right of plaintiff or certain liability of defendant (s 101). Unlike the onus, the burden never shifts. Its relevance in its judicial context is that it lets you know how to pilot the trial; It helps determine issues of rebuttal; lays down rules as to how the issue shall be framed as regards civil case; how charge sheet has to be framed in a criminal case; helps in appreciation of evidence; prescribes tests for identifying on whom the burden rests by raising the right questions; lets you decide the necessity of proving the existence of certain facts; makes inferences from certain relationships and raises certain presumptions in law that guide the test, where but for such presumptions, the burden would be differently cast.

In the manner of raising presumptions, sections 79 to 85 B of the Evidence Act lay down certain rules: In matters of proof of certain documents, the expression used is 'shall presume'. Certified copy of a document issued by Registering officer, for instance, shall be presumed to be true to the original. Gazette copy shall be presumed to be correct. A person accused of certain offences under Ss 121 A,122 & 123 IPC, where the presence of the accused in disturbed area is proved, court shall presume the commission of offence. Dowry death under s 113B shall be presumed, if the death has occurred within 7 years of marriage. Absence of consent in cases of charge against sexual offence shall be presumed. In the category of cases where the presumption may be presumed, a 30 year old document under s 90 may be presumed to be duly executed and attested; Electronic records more than 5 years old may be presumed to be genuine. Abetment to suicide under s 113A may be presumed if the attempt was within 7 years of marriage. All of s 114 presumptions come within category of ‘may presume’. For instance,  presumption as to official acts to have been duly done; presumption of certified copy (s 79); record of evidence in judicial proceeding (s 80); gazette notification; maps; legal decisions and reports; POA duly notarised or attested by Magistrate or consul  are other situations when presumption may be raised. The presumptions are not universal. It may change from country to country and from time to time. A situation that carried no presumption may change to a case when there shall be a presumption that is dictated by peculiar circumstances, to secure certain results, such as the recurrent instances of sexual violence that set a presumption of lack of consent of woman for sex whenever there is a complaint of sexual violence by a woman by a change in law. Here, the truth of situations are to be trashed to what the statute presumes. It is the predominance of what the statute wants to achieve by putting an end to sexual violence by making the fact as established that is important. If the complaint is of a woman in custody, evidence regarding the woman willingly having sex with a person in authority as impermissible, even if true.

Even apart from presumptions as an issue for matters of evidence under the Evidence Act, there are some special enactments that set different rules of presumptions and intervene in the normal understanding of burden of proof.  TADA s 5 (possession of arms in notified area that it is for terrorist activity); IT Act, s 278E (presumption of criminal intent); NDPS Act (s 35); PC Act Ss 4, 20; Customs Act 138A; NI Act s139; IPC s 80 proviso (general exception); CrPC 200 (a) (bona fides of complaint of govt servant); Specific Relief Act s 10 expln (i) (sp performance of contract to sell immovable ppty); HAMA s 16 ( validity of adoption  registered); TP Act s 3 expln II (effect of person in possession); General Clauses Act s 27 (presumption regarding postal service); NI Act  s 118 (presumption regarding consideration); State enactments providing for presumption regarding transport from controlled area/ market/ mandi (UP Krishi Utpadan Mandi Adhiniym, AP (Agri produce  & livestock) Markets Act, 1966; Manipur Food grains Dealers Licensing Order s 3 (presumption regarding storage of more than 100 maunds of food grains as intended for sale). All these have relevance for the quality of evidence that has to be brought to court, when statutory prescriptions overrule any inference to the contrary.

Cross examination by on or on behalf of party as witness

The art of cross-examination is the most effective weapon for the discovery of truth, provided the objective is not to confound a truthful witness but to extract truth from an unwilling witness. While the predominant purpose shall be to secure the truth and call the bluff of the witness of what he asserts, sometimes, even if truth of the version is not successfully tested to the contrary, cross examination may fetch something favourable in answer by way of admission. There could be some statement that could weaken the opponent's case. The outstanding example of how truth was brought to light by the sheer brilliance of cross examination is the defamation case initiated by Oscar Wilde when he caused the prosecution to be launched against Lord Queenberry and how the revelations in the effective cross examination by Carson became the basis for successful prosecution against Oscar Wilde that drove him to incarceration, penury and death. The excerpts are available (http://www.famous-trials.com/wilde/330-libel) and they are truly a lesson of the kind of preparation that is necessary to get at the truth. Such skill that could be acquired only by closely following trials by eminent persons, by arduous study and contemplation. In India, it is a dying art not because there is lack of talent but because continuous examination of witnesses has become a rarity. Conclusion of trials takes a long time and when cases are adjourned as part heard, there is a long gap before the next date is fixed for continuation. The continuity is lost and with it also the spontaneity that is so essential for effective cross examination. The proliferation of writ jurisdictions in the High Courts, where cases are decided only the basis of documents leave no scope for cross examination and if the courts find that the factual details would require a trial court approach, they may also relegate them to civil courts for full fledged adjudication. However, this process is seldom resorted to and the cases meander to further forums upwards with half baked truths and poorly drawn affidavits. Gradually the most potent tool of bringing out truth in courts is slowly losing ground. 
  

Further factors that dilute the prospect to secure truth

Fundamental right against self incrimination

It is a constitutional guarantee as a fundamental right under Art 20(3) that “No person accused of any offence shall be compelled to be a witness against himself.” This principle is espoused on the maxim “nemo teneteur prodre accussare seipsum”, which essentially means “No man is bound to accuse himself”. It makes possible an accused to remain silent without fear of inviting adverse inference. The law has changed in USA, Australia, Canada, UK and China. Apprehending that India may be tempted to go the same way, the Law Commission took suo motu notice and presented its 180th Report pleading for its retention on the ground that the right is otherwise also guaranteed under Art 21 of the Constitution and under sections 161(2) 312(3) and 315 of the Code of Criminal Procedure. It is a brazen reality that we live in a country where the custodial violence is rampant and the police machinery has still not come of age with technical expertise to interrogate without adopting third degree methods. A day when the police is itself not seen as an oppressive authority but a friendly person in uniform to assure safety to citizens, a confession to the police may obtain probative value but however compulsive the retention of this right is, it cannot be denied that if even a truthful statement has no value, it diminishes the effect of voluntary disclosure of a truthful statement and robs the chance for atonement. Even a confession to the magistrate could be retracted and in any event, when the accused comes into contact with legal counsel, chances of persisting with truth become remote.     

Privileged communications cannot be used as evidence

The Evidence Act gives several situations that prevent certain persons from being cited as witnesses, even if they might know the truth. They could not be administered oath and compelled to stand testimony to reveal truth. Communication during coverture of one spouse to another is barred under s 122. Similar privilege is also extended to professional like a legal practitioner to disclose any communication made to him in the course and for the purpose of his engagement as counsel. Only a communication made in furtherance of illegal purpose or commission of offence in the course of his retention as a counsel which was directly observed by him do not enjoy immunity. If you see the attorney as the alter ego of the accused, this protection shall be seen as the necessary corollary for the right against self incrimination that is constitutionally protected. 

Professional ethics

Even apart from situations where a professional cannot be compelled to be a witness against his client in respect of communications, the legal fraternity feels itself not obliged to deny a brief on ethical ground that it shall not be party to falsehood. The justification at all times is ‘I only act as an agent for a client; sounding his surrogate voice and if he tells a lie, it is not my fault'. The ground could also be ‘I am bound to do what will secure to my client the best results, that is why I am engaged. I do not need to preach morals to him. Nobody prevents the judge from finding what is true. If the civil court judge finds the case false, he dismisses the case. If the criminal court judge finds the case to be false, he acquits the accused. My role ends where the judgement is pronounced'. They cite the Bar Council of India Rules of Conduct and Etiquette, where under Section II it states: “An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.” No lawyer refers to the latter part of the Rule that allows a lawyer to deny the brief if there are special circumstances. There is no reason to suppose that a false case of the party and assessed as such by the lawyer himself should still claim that there is at all times a moral duty to represent his client even if he knew that the case is false. Why is it difficult to deny oneself the engagement by characterising the falsity of the case of his party to be a special circumstance to refuse to represent him, or his vow to preserve the purity of his practice shall not be sullied by a false version in court? What worth is the practice if the lawyer will wear blinkers and suffer a handicap that he places himself to elicit the truth or otherwise of the person who seeks his counsel?

Richard Dawkins, one of the most influential contemporary scientists observes, “A barrister who uses eloquence to make the best case he can, even if he doesn’t believe it, even if he selects favourable facts and slants the evidence, would be admired and rewarded for his success.” (Science in the soul',(Bentham Press) (2017). He recalls the incident when he was once talking to a barrister, a young woman of high ideals specialising in criminal law defence. She expressed satisfaction that a private investigator whom she had employed had found evidence exonerating her client, who was accused of murder. Dawkins congratulated her and asked the obvious question, what would she have done if he had found evidence proving unequivocally that her client was guilty. Without hesitation she said that she would have quietly suppressed the evidence. She said, “Let the prosecution find their own evidence.” If they failed, it was not her fault.

In all this, across the globe, we have reduced courts to be institutions where anything could be stated with impunity that has little semblance to truth. There is no incentive for any party to speak the truth. The very tools of extracting truth are not sharp enough to dig deep to unravel it. We need different tools, different formulations. By litigation, let us understand that it shall be through truth; it shall be for upholding justice. There is enough work for all the lawyers even if they stick to these ethical principles. It is wrong to assume that in order to be prosperous we need to generate false cases. The resolve must begin at the formative years even while readying oneself to be a lawyer.

Duty of lawyers

If our commitment to truth in human interactions is genuine, we need to believe that courts shall not be the places where any falsity is stated with impunity. A person who says for false prestige that he will fight up to Supreme Court knows that he has scumbag lawyers who will fight for him even worthless cases with no merit. He has no fear that a counsel will refuse his brief even if the case is brazenly false. He has no fear that the court will proceed against him for perjury even if the court finds his evidence to be false. He is confident that costs will not be imposed on him even if the case were to be dismissed, for dismissal with both parties to bear their own costs at appellate courts is the norm. Endless appeals and revisions up to Supreme Court for all matters are a bane and a clear invitation to try all the judicial tiers and abuse the judicial process. Unless the lawyers see themselves as torchbearers of justice and ethically vow to uphold only truth and not file false cases, the misuse by litigants cannot abate. It is impossible to make the whole population virtuous and practitioners of truth, but is it too much to ask of the practitioners of law, who are a small percentage of the entire population that they must abjure false and frivolous cases?



Wednesday, April 01, 2020

Basic structure of the constitution, is it sufficient guarantee to preserve its ideals


Basic structure of the Constitution, is it sufficient guarantee to preserve its ideals?

Positioning judiciary

Fewer institutions in the world are as strong as Indian Courts. Both in terms of performance and non-performance, Indian courts occupy the highest positions. To-day there are a 4.64 million cases pending all across India in all the High Courts. We have disposed of 124,960 in just one month in February 2010. There are 31.86 million cases pending in all district and taluk level courts and we have disposed of 1.51 million cases just last month. The Supreme Court has 60,469 cases pending on 1.3.2020. Courts vie with politicians in hogging the headlines in both print and electronic media. The basic structure doctrine of what the Supreme Court as articulated puts the judiciary at a high pedestal to look up to know what the desideratum is, the irreducible minimum as it were, on what the constitutional architecture rests on.  It is a manner of understanding how the legislature and the executive are beset with limitations in their assigned roles of performance. There can be no rule, no law, why no amendment of the constitution itself that can conflict with the basic structure.

Property rights as trigger

It is only natural that you quickly will expect to know what the basic structure is. It is like God!. You kind of know that He exists or does not, or, as per your belief or non-belief, with form or without form and hence ubiquitous. When the Court brought up this doctrine in Kesavananda Bharati (1973), the court identified several attributes of the basic structure but said that they cannot spell out all. They left the basic structure as the foundation where there remains hidden several gems, but you cannot unearth them all. Law could be constantly evolving as per the requirements of the society’s needs, but can basic structure be also constantly evolving? Will it not be a dangerous quicksand if basic structure is also constantly changing?
The court’s initial assertion was in response to government policies ushering land reforms and other economic legislation where they examined the laws’ validity on the touchstone of the sanctity of fundamental rights. A strong legal brain from Tamil Nadu VKT Chari advised Nehru how to keep the courts in check against challenge in court and make them impermeable against judicial review. It took shape through the 1st constitutional amendment to set up IX Schedule and the law that wore the cloak of the schedule or that which was dropped in that iron chest could not be opened to examine.
In a series of decisions in 1954, the Court ruled that even economic regulations that caused restrictions on property rights constituted an abridgment of the property right, and thus triggered the compensation requirement. In Bela Banerjee (1954), the Court interpreted the term “compensation” in Article 31 as requiring fair and adequate compensation. In response, the government passed the Fourth Amendment, which sought to limit compensation only to those cases where the state actually acquired property, and stipulated that it was the state—the government —not the courts, who would have the final say in determining the amount of compensation required. The battle between the judiciary and the government over property rights culminated in two landmark decisions— Golak Nath v. State of Punjab in 1967, and Kesavananda Bharati v. State of Kerala in 1973. Amendment was law under Art 13, said Golaknath. The Court invoked the doctrine of “prospective overruling,” which meant that the ruling would only apply to future amendments, and that the First, Fourth, and Seventeenth Amendment though deemed to be unconstitutional, would remain in effect. In RC Cooper, the Supreme Court did what Golaknath did not. It said that inadequacy of compensation that was illusory was surely justiciable to invalidate Bank Nationalisation. In another challenge to the Indira Gandhi government, the Court in Madhav Rao Scindia v. India invalidated the Gandhi government’s efforts to abolish the titles, privileges, and privy purses of the former rulers of the princely states.

24, 26 and 29th amendments, symbols of open confrontation with judiciary

In response to these rulings, Indira Gandhi dissolved the Lok Sabha early (for the first time in India’s political history), and openly campaigned against the Court, promising to make basic changes in the Constitution to provide for social equality and poverty alleviation. The Twenty-Fourth Amendment, which sought to overrule Golak Nath by affirming and reasserting Parliament’s unlimited power to amend the Constitution under Article 368, including the fundamental rights provisions, and declared that such amendments were not ordinary “laws” under Article 13, and thus could not be subjected to judicial review by the Court. The government also sought to override the R.C. Cooper decision by enacting the Twenty-Fifth Amendment, which sought to make compensation associated with land acquisition laws non-justiciable, sought to give primacy to the Directive Principles in Article 39 over the Fundamental Rights provisions in Article 14, Article 19, and Article 31, and stipulated that laws enacted by the Central and state governments to give effect to the Directive Principles could not be challenged in Court. Finally, the Twenty-Ninth Amendment was enacted to add two Kerala land reform laws to the Ninth Schedule.

Basic structure, where it remains hidden

In Kesavananda, a thirteen-judge bench of the Court heard a series of challenges to the Twenty-Fourth, Twenty-Fifth, and Twenty-Ninth Amendments. In a 1,002 page decision consisting of eleven separate opinions, the Court overruled its earlier decision in Golak Nath in holding that Parliament could amend the fundamental rights provisions, but also held that under Article 368, Parliament could not enact constitutional amendments that altered the “basic structure” of the Indian Constitution. At the time of the decision, there was a great deal of confusion regarding the actual “ratio” or rationale underlying the majority decision in Kesavananda, as only six justices held that the power of constitutional amendment was not unlimited, given that there were implied limitations on it, while six other justices held that the power of amendment was unlimited. The end of the opinion, however, contained a summary of the “view of the majority” that was signed by nine of the twelve justices that asserted that Parliament could not alter the basic structure through the amending power under Article 368. (citing Kesavananda Bharati, A.I.R. 1973 S.C. at 1461–62). The “tie-breaking” opinion was Justice Khanna’s, though this was on very narrow grounds. Khanna, while also holding that there “were no implied limitations on the amending power” also held that “the words ‘amendment of the Constitution’” in Article 368 “cannot have the effect of destroying or abrogating the basic structure of framework of the Constitution.” Kesavananda Bharati, A.I.R. 1973 S.C. at 1463. However, the six other justices that held that there were implied limitations on the amendment power did not base their rationale on interpretation of the term “amendment” in Article 368. It would seem that it was grammar or semantics that became the guiding force to understand the parliament’s amending power! Consequently, several leading scholars noted that there was no real majority rationale supporting the basic structure doctrine, and because the Court never sought to consider all of the judgments to derive a ratio.

Each judge had his own concept of basic structure: (i) Supremacy of the Constitution, (ii) Republican and democratic form of government, (iii) Secular character of the Constitution, (iv) Separation of powers between the legislature, the executive and the judiciary, (v) Federal character of the Constitution. The above structure is built on the basic foundation, i.e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. Justice Shelat believed “the unity and integrity of the nation” and “the mandate given to the state in the directive principles of state policy” were also basic features of the Constitution. What was particularly striking about the Kesavananda decision was that it represented a direct political challenge by the Court to the electoral mandate of Gandhi’s Congress regime, which had won 350 out of 545 seats in the 1971 elections. In its manifesto, Gandhi’s Congress party sought a mandate “for the reassertion of Parliamentary Supremacy in the matter of amendment of fundamental rights,” a direct reference to the Court’s decision in Golak Nath. In fact, in its decision, the Court went so far as to question the electoral mandate of the Congress party, noting that “[t]wo-thirds of the members of the two Houses of Parliament need not represent even the majority of the people in this country. Our electoral system is such that even a minority of voters can elect more than two-thirds of the members of either House of Parliament.”

Basic structure test applied to important decisions applying different meanings

The doctrine was put to test immediately in several important rulings. Indira Gandhi v Raj Narain was the major judgment that struck down the amendment to the Constitution insulating challenges to the election of the PM. Justice Khanna held that the Art 329(A) contravened the “democratic set-up” of the Constitution and the “rule of law,” given that democracy requires that “elections should be free and fair. In contrast, Justice Chandrachud invalidated the clause on the grounds that it violated the basic structure in that it represented “an outright negation of the right to equality,” and as “arbitrary, and calculated to damage or destroy the rule of law.” Justices Ray and Matthew held that Article 329A was invalid “because constituent power cannot be employed to exercise judicial power.”

With respect to the development of the basic structure doctrine, the truly pivotal “moment” may indeed be the Court’s twin decisions in Minerva Mills and Waman Rao, in which the Court reasserted the basic structure doctrine against Indira Gandhi’s newly elected government (Gandhi defeated the Janata coalition in January 1980) by invalidating several Emergency amendments that had limited or curbed the Court’s jurisdiction and powers of judicial review. In Minerva Mills v. Union of India, the Court heard a challenge to the Sick Textiles Nationalization Act of 1974, which had been added to the Ninth Schedule of the Constitution through the Thirty-Ninth Amendment thus, immunizing the Act from judicial review. In Waman Rao v. Union of India, the Court reaffirmed the basic structure doctrine, holding that all amendments enacted after the Kesavananda decision of April 24, 1973, including laws added to the Ninth Schedule, were subject to judicial review under the basic structure doctrine.

In 1997, the Court in L. Chandra Kumar v. India overruled its decision in S.P. Sampath Kumar. The Court in L. Chandra Kumar held that Article 323(A)(2)(d) contravened the basic structure in that it allowed Parliament to exclude the jurisdiction of High Courts under Article 226 over the administrative tribunals, and only allowing appeals to the Supreme Court. The Court’s decision represented a reassertion of judicial authority over the administrative tribunal system. In 1992, a coalition of Hindu rights organizations launched a campaign that ultimately resulted in the demolition of the Babri Masjid (which was alleged to have been built at the site of a former Rama temple) also resulting in the acquiescence and support of the BJP government in Uttar Pradesh, which led to heightened communal violence throughout India. In response, the President dismissed the BJP governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh. In Bommai, the Court proceeded to uphold these dismissals under Article 356 of the Constitution on the grounds that the President’s actions were necessary to save the basic structure of the Constitution, since the state governments were not functioning in accordance with secularism, which the Court ruled to be part of the basic structure of the Constitution. The Court thus expanded its power to include the review and scrutiny of political decisions relating to state elections and politics. Through the development and entrenchment of the basic structure doctrine, the Court helped assume a “guardian” role in protecting and preserving basic features of the Constitution from being altered by political majorities. In its decisions adjudicating the constitutionality of administrative tribunals, the Court asserted the basic structure in order to safeguard judicial independence. Furthermore, its decisions in S.R. Bommai and its progeny have enabled the Court to play an active role in defending secularism and policing federalism in cases involving the central government’s emergency powers of dissolution. Additionally, the Court in I.R. Coehlo reasserted the basic structure doctrine in holding that the Court could review the validity of all amendments inserted into the Ninth Schedule after the Kesavananda decision in accordance with the basic structure of the Constitution and the fundamental rights provisions. The basic structure doctrine thus ultimately proved to be a powerful bulwark against the excesses of majoritarian politics in India. In essence, the Court’s assertion of this doctrine enabled the Court to apply the “brakes” on radical constitutional change, reassert and safeguard judicial review, and reinforce core structural features of the Indian constitution—secularism and federalism.

Basic structure doctrine used for anti-majoritarian posturing and for settling competing commitments

The Golak Nath and Kesavananda decisions represented a response to the Indira Gandhi government’s efforts to limit the Court’s ability to review land reform and nationalization laws related to property rights. The Court’s basic structure decisions in Kesavananada and later cases illustrate how courts may assert limits on governments to prevent them from amending the Constitution in a way that violates certain entrenched constitutional norms or principles. The Indian Court’s basic structure decisions solidified the Court’s “super” anti-majoritarian function in imposing limits on the abilities of majorities to do violence to the core principles underlying the Indian Constitution.

Like many world constitutions, the Indian Constitution embodies competing commitments to different goals and values. The Constituent Assembly, in framing the Indian Constitution, was thus faced with the daunting task of constructing a constitution that could lay a foundation for ameliorating systemic caste-based and economic inequality, while providing basic protections for economic rights and civil liberties and freedoms. The Indian Constitution sought to balance the Nehruvian aspirational vision of an egalitarian society contained in the Directive Principles of Social Policy, against the Fundamental Rights, a set of negative rights or limits on government power. The former articulated the “humanitarian socialist precepts” at the heart of “the Indian social revolution,” though these principles were originally designated as non­justiciable. The Fundamental Rights, in contrast, set forth explicit, justiciable negative rights, and was modeled in great part on the American Bill of Rights. But in Bommai, the Indian Court invoked the basic structure doctrine in holding that the central government could invoke its emergency powers to suspend state governments that had failed to safeguard and protect secularism. In essence, the Court held that federalism could be subordinated to another competing commitment—secularism.

Testing times for the courts

The question that remains is: Are Courts that roughly follow public opinion capable of performing what is generally understood as their core counter-majoritarian function— protecting minority rights against majoritarian excesses? The recent judicial trends have shown that in all cases, and especially in cases involving the most vulnerable civil liberties and civil rights claims, courts appear to be ill-equipped to play their most basic constitutional function.  We have now at the Centre a right wing government, which believes that this a Hindu nation; since it has a straight majority to rule, it could fashion policies the way it believes will lend power to assert its majoritarian policies; there is a blurring line between government and nation and consequently, if you voice your opinion against government or approve of  any sagacious counsel even from UN bodies, you are treated as mouthing sedition. Supreme Court rules 1992 incident at Ayodhya to be illegal. If the decision had been anchored to the settlement between parties, no question could have been asked. It looked for political expediency through a judgment and allowed the illegal demolition to be condoned by court’s permission to construct. We will hold that internet access is a fundamental right but we will trash it if government raises the bogey of national security to clamp down on all fundamental freedoms and arrest all political dissenters; if the constitutional morality of non-discrimination on the ground of gender for temple entry was the lynchpin for its central holding banning a few centuries old practice of keeping away menstruating women from Sabarimala, through a review petition, the Supreme Court cleverly reopens the case and posts it to be heard along with cases dealing with Muslim women’s entry into mosques and female circumcision practised in some communities. When Delhi was burning, if there a judge who was not willing to play Nero’s fiddle, he gets transferred. And the Chief of that court, on resuming the hearing says, let’s play fiddle, case adjourned!



Tuesday, November 26, 2019

Constitution Day Address at Law College, VIT University


Seventy ago on November 26, the Constitution of India was adopted by the Constituent Assembly. The Preamble to the Constitution of India bears testimony to the historic occasion. However, the Constitution was only partially adopted that day. The full adoption came two months later on January 26, 1950 - the day is celebrated as the Republic Day to mark the anniversary of occasion. Post Emergency, after the then Janata party also failed to hold on to the government at the centre, there were strong waves of introspection of the situation that gave place to emergency. The flagrant violations of human rights at that time, the ADM Jabalpur decision during emergency when the Court infamously said that there was no right to life at all when there was emergency in operation, the memory of supersession of judges and when A.N.Ray was appointed as CJI because three other judges who delivered the Kesavanada verdict were found as not towing the government's policies and the obvious affront to the independence of judiciary that they meant, all conjured in the minds of the right-minded intelligentsia and particularly the legal fraternity. Just as the legal professionals took active participation and gave leadership in the Freedom Movement, some of the prominent lawyers at Delhi saw themselves donning the role of torch bearers of the ideals of the constitution and at a meeting of the SC Bar Association, Shri.LM  Singhvi who was then President of Supreme Court  Bar Association and who had latter served   as Indian Ambassador to UK proposed to select 26th November, the day in which the Constituent Assembly  adopted the draft constitution, as the Law Day. The National Law Day was celebrated thereafter till 2015. The Government of India declared 26 November as Constitution Day on 19 November 2015 by a gazette notification. The Prime Minister of India Narendra Modi made the declaration on 11 October 2015 while laying the foundation stone of the B. R. Ambedkar memorial in Mumbai. The year of 2015 was the 125th birth anniversary of Ambedkar, who had chaired the drafting committee of the Constituent Assembly and played a pivotal role in the drafting of the constitution.
The several objectives that were detailed at the first meeting dovetail to secure a cohesive democracy built on the rule of law. The constitutional vision is contained in the preamble and the ideals expressed were contained in Part III containing the Fundamental Rights Chapter. The way the State will proceed to secure the vision by policies are set out in Part IV of the Constitution. The role of the student community in preserving and realising constitutional goals cannot be under-estimated. During the British occupation of India, Gandhiji involved the youth in the freedom movement in large measure. He had no qualms about even asking the students to abandon studies to join the bandwagon of freedom fighters. Writing in Young India Mahatma Gandhi said, “the world produced brilliant students before schools and colleges came into being. There is nothing so ennobling or lasting as self-study. Schools and colleges make most of us mere receptacles for holding the superfluities of knowledge. Wheat is left out and mere husk is taken in. I do not wish to decry schools and colleges as such.  They have their use. But we are making altogether too much of them. They are but one of the many means of gaining knowledge.” He expected the students to be brave and courageous. He said, “Let them realise that learning without courage is like a waxen statue beautiful to look at but bound to melt at the least touch of a hot substance.”
Why am I speaking about courage to students? What is the message that I have for the young students on a Constitution day? Of the several provisions, the preamble contains the most pregnant expressions for it truly is a declaration of what we the people of India set for ourselves. True to the oft quoted expression of the Constitution as a dynamic document that gives itself to changing aspirations of the people, the preamble underwent an amendment to include the word “secular” when it said, “We the People of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic Republic and to secure to all its citizens, Justice, Liberty, Equality, Fraternity, etc. There are clouds overhanging our heads that threaten the cherished constitutional goals and exalted institutions that exist to protect and enforce these rights. There is an eternal vigil necessary whenever there is an infraction of these high ideals set forth in this document; or when the institutions constituted under them are denigrated or when the Constitution is subverted. It is essential for us to recognise the recent happenings that have immense constitutional importance. I will cite three instances: (i) dilution of Article 370; (2) Inability of the State to enforce the judgment of the Supreme Court or the Court making a judgment has worries about its enforceability and therefore spares even the executive not to do what it is bound to do and (3) the way students’ unrest in campuses and the youth power are snuffed out in one place and protected in another. I am not going to give you answers that I have secured for myself or the endeavour that I am undertaking but I am flagging some important signposts that beg for minute attention and informed discussion.
It is essential to know that Article 370 wrote itself into the Constitution after extensive discussion for more than 5 months between Jawaharlal Nehru and his colleagues with Sheikh Abdullah and his colleagues. The State of Jammu and Kashmir is the only State in the Union of India which negotiated the terms of its membership with the Union. The Constituent Assembly merely approved the draft and the Article recorded the fact of a solemn pact. From 1950, we have fought 3 wars with Pakistan in 1947, 1965 and 1971 and later the Kargil conflict, all fought on Kashmir. The ordinary person could say that the festering   problem has now been put an end with the dilution of Art 370. It could be on account of fatigue of what we have gone through. But for students of law, they must engage in searching questions that will include, the  history of the Kashmir tangle, the circumstances that lead to incorporation of Art 370 and the transient nature of the provision to be subject to the decision of the Constituent Assembly of Jammu and Kashmir, remember not the legislative assembly of the States, constitutionality of the legislative action, the lock down of normal life in Kashmir, the arrest and detention of all representatives of the people. A lady who came to the Supreme Court seeking for permission for seeing her mother was advised by the court to see her mother and return but added sarcastically, 'do not go around the city in the cold.'
The decision of the Supreme Court in Sabarimala Case was brought at the instance of the Indian Young Lawyers Association is important not merely for understanding the concept of freedom of religion but also whether certain of the practices form the bedrock of essential religious practices protected under Art 25. What is equally important also is when there is a judgment approving of women of all ages to enter the temple, the State was not able protect all persons seeking entry and when the review was disposed of with a reference to a larger Bench, the State Home Minister said that the government cannot grant any protection, for, although there was no de jure stay of the earlier order, there was a de facto stay!  Justice Rohinton lamented,  
Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things. After all, in India’s tryst with destiny, we have chosen to be wedded to the rule of law as laid down by the Constitution of India. Let every person remember that the “holy book” is the Constitution of India, and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by this “Magna Carta” or Great Charter of India.
The third issue is how the students’ unrest at JNU is seen and commented by the press and people alike and how the hooliganism of students of Benares Hindu University students who will not learn Sanskrit from a Muslim teacher goes without comment from the digital media or the university administration. The former has an intimate Constitutional law angle from the context of right to education, support for the poor and the bright students and students belonging to socially disadvantaged sections that the State is bound to give assistance but would mindlessly increase hostel fees and other charges several times the existing fees and when resisted, beat them up and arrest them and at the same time when a brazen attempt to stifle a constitutional guarantee under Art 16 against discrimination on the ground of religion is practised, there is no whisper of admonition from the government or the university administration against the protesting students.
Do not think that democracy is assured by the fact that elections are held once in five years. In a book by Steven Levitsky and Daniel Ziblatt titled How Democracies Die, the authors identity four markers which indicate how democracies degenerate to authoritarian regimes:
  1. Rejection of or weak commitment to democratic rules of the game. This would be manifest through rejecting the constitution or express willingness to violate it. They may consist of restricting basic civil or political rights.
  2. Denial of legitimacy of political opponent. It may manifest by a claim that the rivals constitute an existential threat either to national security or prevailing way of life.
  3. Toleration or encouragement of violence.
  4. Readiness to curtail civil liberties of opponents including the media.
They write about Trump’s USA and worry themselves that Trump answers all the four markers. Raise these questions to Indian situations periodically, see if we are assured of a working democracy where human rights of all individuals are respected; whether the press reports fairly against actions that imperil the safety of the socially, economically and religiously disadvantaged sections; whether dissent is tolerated or leaders of opposition are branded as anti-nationals and cases are foisted against them and whether the perpetrators of violence have state patronage or quick action taken to apprehend them. Introspect, ideate and engage in active conversations. In your vigilance lies the sanctity of the solemn Constitution; in your engagements to question  constitutionally unacceptable practices lie the vibrancy of the rights guaranteed in the constitution; in demand for adherence to the rule of law by every organ of the State lies the safety of the institution of democracy.
Address at the VIT University, Law Department on 26th Nov 2019

Monday, October 28, 2019

Ayodhya settlement once and for all

Settling the Ayodhya case once and for all

There must be an understanding that in the outcome, there is neither victor nor vanquished

Sushil Kumar VermaSushil Kumar Verma

The Ayodhya issue is tantalisingly poised and there are only guesses about how the case could pan out — the Supreme Court of India had allowed arguments before the court and mediation talks to proceed simultaneously. It has been an unusual step. The dichotomy of this approach could perhaps be explained by the fact that the Court had marked August 15 as the deadline for turning in the settlement. Then, in July the pace of mediation was stepped up and the court wanted a report by August 1. Since there was no settlement by then, it commenced hearing. Down the line some parties made requests for a resumption of talks. It looked as if the court was unwilling to stop the hearing but also reluctant to let go of the possibility of a compromise.
Parties to appeals, settlement
The appeals pending before the court — as many as 14 — arose out of five original suits filed in Allahabad. Out of the said five suits, four were filed between January 1950 and 1962. The first two were filed by individuals in their capacity as worshippers. The second suit was allowed to be withdrawn on September 18, 1990. The third suit was filed by the Nirmohi Akhara of the Ramanandi Sect through its Mahant in 1959. The fourth was filed in 1961 by the Uttar Pradesh Sunni Central Waqf Board and eight Muslim residents of Ayodhya and the general secretary (by name) of the Jamiat Ulema Hind, U.P. branch. In this suit many Hindu parties were arrayed as defendants. Representative status was given by the court to the plaintiffs and defendants in this suit to represent their two communities respectively. The fifth suit was filed in 1989 by Bhagwan Sri Rama Virajman (the deity is regarded by law as a perpetual minor requiring representation through human agency) and Asthan Sri Rama Janma Bhumi Ayodhya (the place of birth) through Sri Deoki Nandan Agrawal, who incidentally was a former High Court judge and resident of Allahabad and sought to be treated as the friend of the deity.
Going by media reports, it appears that some of the significant parties in the case, but not all, are parties to the settlement. It is believed the Vishwa Hindu Parishad in the form of the Ram Janambhumi Nyas and its supporter T.N. Pandey as the current friend of deity on the extreme side, and the Jamiat Ulema Hind on the other extreme side are opposed to the settlement. If that be so, it means there is a broad spectrum in between, of the Sankaracharyas backed Punaruddhar Samiti, the Nirvani and Nirmohi Akhara bodies and the Hindu Mahasabha which are pro-settlement.
And most important of all, the Uttar Pradesh Sunni Central Waqf Board, the statutory custodian of the disputed site under the Waqf Act, is reported to be a signatory. If these reports are anything to go by, the board is willing to acquiesce in the acquisition of the disputed site and give up its claim to it if other places of worship are protected and the Muslim community gets a fair number of additional mosques, in Ayodhya and elsewhere, where prayers can be held. So, what does a court do under these circumstances where a number of parties come forth with a settlement which they can subscribe to and which could cease the conflict, but which other parties oppose?
The Code of Civil Procedure allows one or more of community of persons, with the permission of the court, to sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested. The court shall, in every case where permission or direction is given, at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
Independent of the power to represent the general body, any person on whose behalf, or for whose benefit a suit is instituted or defended may apply to the court to be made a party to such suit. The only restriction for a settlement so brought about to bind all persons is that no suit could be withdrawn, or compromise made, without the leave of court. The Sunni Waqf Board having been given representative character and which claimed ownership to the site and the mosque literally excludes any scope for any other person among the Muslim community to lay claim to the property contrary to the concessions and agreement which it is prepared to enter into. The Hindu parties that have not come on board will have to tell the court why they are resisting a settlement in which they are getting the land for which they have been fighting for so long and raised such large funds, when the site is being effectively given up by the Muslim parties, and where the Ram temple can now be a reality. A lack of bona fides may result in some strict action from the court. Where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, as per the diktat in the Code of Civil Procedure, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.
Width of court jurisdiction
There is another larger aspect here and that is the overarching power given only to the Supreme Court under Article 142 of the Constitution, the power to do complete justice in cases before it. This rare and almost awesome power permits the court to work through legalistic objections and climb above procedural difficulties to bring about the best possible result for the parties — and in this case, the country. In the words of the Supreme Court itself in State of Punjab v Rafiq Masih (2014), “Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute.
It is a power that gives preference to equity over law. It is a justice-oriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law.” Given the fact that “justice” itself is susceptible to a plurality of meanings, the court could mesh the wisdom of parties’ efforts in putting together an agreed formulation, aided by suave handling by the mediators and the counsel’s lucubration that played out in court for 40 days of marathon hearings. It can come out with a humble offering on a platter of how the collective wisdom of all parties yielded to a denouement that douses mutual bickering among the communities and cement a lasting peace that will do India proud.
Need for a strong message
The majority community owes to its Muslim brethren an assurance that the ugly incidents of December 6, 1992 shall never be repeated in any other place, neither in Kashi nor in Mathura. And that in the outcome, there is neither victor nor vanquished. Restoration of dented prestige, enhancement of social standing and durability are the motivations for the nature of final outcome.
On August 15, 1947, Gandhi marked the day with a 24-hour fast, prayer and spinning yarn. When C. Rajagopalachari visited and congratulated Gandhi for restoring peace in the city of Calcutta, Gandhi said he will not be satisfied “until Hindus and Muslims felt safe in one another’s company and returned to their own homes to life as before”. His hope remained but a dream. On the day when the judgment of the Supreme Court is given, let the Prime Minister and the Chief Minister of Uttar Pradesh appear along with other parties to the litigation to hear the judgment of the Supreme Court as it is read in open court. This act will instil confidence that even if they had failed in the past, they shall begin yet again an era of goodwill and trust among all sections of the community.
Published in the Hindu on 29th Oct 2019

Wednesday, March 06, 2019

Ayodhya imbroglio, is mediation viable?


The suggestion of the Supreme Court for considering mediation for resolving the Ayodhya Mandir-Mosque dispute shall be seen as sagacious counsel to seize the opportunity to bury the hatchet between the warring parties and usher an era of understanding and camaraderie. Court’s exhortation is not an abdication of its duty to adjudicate. It is a propitious reminder to seek answers that are not binary options; if multiple, they cannot be ticked as right or wrong; or just or unjust: Is not the Ayodhya dispute outside court and not inside? Can the lawyers be trusted to argue the cases with dignity? Will the opinion of the court represent a dispensation of justice to all parties? Will all the people rest in quiet after the verdict and go about peacefully? Do we not have answers that could bring victory to all of us Indians as siblings in arms and not sepoys with arms?

Standards of proof in court are different
It is difficult to say when the ‘Ayodhya dispute’ itself started. There was no unanimity in the 3 member judgment of the Allahabad High Court delivered on 30.9.2010 that there was a temple at the place where Babur had ordered the construction of a mosque or when the mosque was constructed. However, Justice Sibghat Ullah Khan wrote that there was evidence that much before 1855, Ram Chabutra and Seeta Rasoi had come into existence in the same place where the mosque had been constructed. He observed: “It was very, very unique and absolutely unprecedented situation that inside the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.” Can we understand that there was unusual camaraderie between two communities, both offering worship according to their own tenets? Justice Khan did find not proof that the Babri mosque was constructed at the same place where there existed a Ram temple. However, there was archaeological evidence of existence of ruins of once existing temple under the Babri mosque. He said, “Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque” (sic). This was central to the final dispensation that Hindus and Muslims jointly owned the place.  Justice Sudhir Agarwal said that there was not even proof that the mosque was constructed in 1528 but “this much is clear that the same was constructed before the visit of Joseph Tieffenthaler in Oudh area between 1766 to 1771.” Do you realise that even commonly accepted ‘historical facts’ may be found to be not established, if you subject various incidents to pass through the prism of judicially acceptable evidence?

Where Courts cannot be effective
Judgments of courts do not always resolve disputes. Issues of language, region, religion, and sharing of natural resources are wholesome recipes for making political capital to create divisions amongst people. River water disputes between States have been stoked for cheap political gains, even when facts and law were clear and judicial pronouncements were rendered after long deliberations. If the courts in India carry the odium of poor performance, it is largely due to the kind of cases that are brought to the portals of courts are not typically fit to be brought to courts but resolved through negotiations. There are too many cases that are not just fit for hearing before courts; that require no forensic skills of reasoning to write lengthy judgments; that are ill-suited because they adopt adversarial posturing; And Ayodhya imbroglio is precisely one such.

Identifying the nature of Ayodhya dispute  
It is no less an enigma if Sri Ram is a mythological character or a historical hero. Mythologies cannot all be wished away as distortions of facts and hence meaningless. They help consolidate a common belief system through continual storytelling and foster a sense of belonging to a shared experience of history. In that way, Ram’s birth place as Ayodhya evokes the same sense of reverence as Jerusalem does to countless persons that owe allegiance to Judaism, Christianity and Islam. There is a wide spectrum of options in all types of cases, with negotiation at one end and trial as the other. The former means that the parties retain control over the process and outcome while at the trial, a third-party judge or arbitrator has a power to render a binding decision on a pre-designated process of adjudication. Within these extremes exist at the middle mediation, where the third-party neutral does not have a power to impose a binding decision but the parties themselves examine and decide on the outcome. The Ayodhya dispute is not a case that is built on rights where a third-party judge could deliver a judgment that is satisfactory to all of them. This is an interest-based litigation where one party desires the retention of status quo as a mosque, while the other is interested in establishing as place of worship not based on any established right but what one believes as place of birth of venerable Sri Ram based on his religious and cultural moorings. Costs and time are not issues at hand. Restoration of dented prestige, enhancement of social standing and durability are the motivations for the nature of final outcomes that are better assured in a formulation where parties control the outcome. A public posturing through arguments of counsel will offer little scope for concessions but a concession on a point in a confidential in-house process will not obtain public gaze to be viewed as a sign of weakness. In creating a system for dispute resolution, it is best to identify as many persons as possible as stakeholders in order to satisfy a large body of persons with diverse interests and garner better support to the outcomes.
    
Identifying the stakeholders
There was an attempt by Sri Sri Ravishankar to mediate the dispute. He oversimplified the effort.  His gesture was good but the process that he adopted was not adequate. Identifying the stakeholders to the dispute and convening them are key elements to design a system to resolve the dispute and formulate an agreed process of carrying the negotiation. The parties named in the 13 appeals pending before the Supreme Court are naturally the persons who shall be called to participate. Out of the 5 suits, 4 suits were filed between January 1950 and 1962. The first 2 suits were filed by individuals in their capacity as worshippers. The second suit was allowed to be withdrawn on 18.9.1990. The 3rd suit was filed by Nirmohi Akhara of Ramamnand Sect through its Mahant in 1961, the 4th suit was filed by Sunni Central Board of Waqfs Uttar Pradesh and 9 Muslim residents of Ayodhya in 1962. The State of UP and some named individuals were also parties. The 5th suit was filed in 1989 by Bhagwan Sri Ramlal Virajman  and Asthan Sri Rama Janma Bhumi Ayodhya through Shri Deoki Nandan Agrawal, who incidentally was a former High Court judge and resident of Allahabad. The worshippers’ suits are representative actions (O.8.R.1 under Civil Procedure Code) and the Court always has power to order general notice to all the worshippers and implead parties whose presence the court thinks as necessary.

Identifying the representative body on the side of Muslims is not difficult, for they are already before court. The Hindu Samaj has no such representative body. The persons who brought the structure down and delivered the denouement were a nameless crowd; hooligans to some; if even heroes to the eyes of some. They cannot be surely called to the table. The stakeholders are persons who are the chosen representatives of the dispute who want a solution. Hindu outfits that have evinced no political ambition and who have no clout in the corridors of power shall also be the stake holders to design the system. Representatives of Ramakrishna Mutt and Aurobindo Ashram that owe their institutional origins to Swami Vivekanand and Sri Aurobindo, the very names that ought to instil down the order a swing away from narrow sectarian approaches could be invited to participate. The Supreme Court which is seized of the matter itself could identify the stakeholders and help them design the process.

Systems design to indicate process involved for carrying dialogue
If adjudication through courts or arbitration is not ideal, a third party neutral or body of neutrals that the stakeholders agree will start the process. Normally, the parties themselves decide on the mediator. It is expected that all the information given at the session is confidential. No part of the statement in the process of dialogues shall be used as evidence in any court of law. Given the complexity and enormity of the dispute, the person or a body of person shall be such whose neutrality is impeccable and stature, colossal. The person that heads the panel shall be just not a religious head belonging to any denomination but a global spiritual leader, whose respects our culture in all its beautiful diversity. The Dalai Lama could be a great name to reckon. The dialogue will not be merely on facts pleaded and documentary evidence adduced but will also be on issues of law. Convening the parties to the dispute and setting a time frame will be the task of the panel of neutrals. The respective parties will have the benefit of legal advice at the negotiating table and the statement of law aired freely, will help the parties refine their options. The systems design will include suggestions if the panel could claim neutral opinion on points of law based on the points of disputes Or, the Supreme Court may itself volunteer to give written opinion on the points of law jointly formulated by counsel to the panel for helping the parties to carry forward the dialogues. The brainstorming will be in every bit of options available. The process will match the categories as: what ought to be considered; what may be considered; even what parties are not sure if they should be discussed or not and what both parties are unanimous that they shall not be discussed. They will result in a consideration from the ‘surely must have’ ones to ‘issues of doubt’ to ‘seemingly impossible’ ones.

Historical revisionist exercise is dangerous
We cannot engage in historical revisionist exercise in re-building temples and demolishing places of worship of other religions. It is a fact of history that the Moghul Rulers practised Islam and East India Company and later the English’ direct rule allowed Christian missionaries to proselytise and propagate their religion. The French’ and the Portuguese’ rule in different pockets of India also secured converts from the local populace to Christianity and their modified forms of worship. What if there are persistent demands for demolition of churches and mosques on actual or assumed stand that in any existing Hindu place of worship, there was a church or mosque? Take, for example, the demands that already exist for relocation of mosques and ‘restoration of temples’ at Mathura and Varanasi. A perfectly documented history is the private diary of Ananda Ranga Pillai (Volume 2, 1746 AD), Chief Dubash (translator) to Governor Dupleix of Pondicherry, where he records to the minutest detail of how a Shiva temple was demolished and a Church consecrated in the very same place. The Church is situate is Mission Street at Pondicherry where ardent Christian worship and Sunday Mass are conducted regularly. Imagine, the upheaval it could cause if there is a demand for restoration of the temple at the place, citing the Ayodhya example. The whole exercise must commence from the accepted premise built on factors that (i) Ayodhya uniquely presented an ever ranging dispute running to several generations about the ownership and its nature of user; (ii) at the time of India’s freedom when the will of the people of India prevailed and we gave to  ourselves a written Constitution agreeing to be governed by rule of law through parliamentary democracy, there existed no dispute for restoration of temple in any court other than at Ayodhya and (iii) what happened on 6th December 1991 by the demolition of the disputed structure was an act of vandalism, never to be repeated with demand for construction of any other place of worship in the place of any other form of worship. If the Centre gives assurance that it shall protect all ancient places of worship against vandalism and against conversion of any place of worship from one religion to another, there is simply no reason why the idea of negotiated settlement through a non-adversarial, non-adjudicatory conciliatory process will not be acceptable to all parties.