Niveditha K Prasad and Rakshit Agarwal

In this episode of Arbitrary, Niveditha (Deputy Managing Editor, LSPR) and Rakshit (Editor, LSPR) sit down with Senior Advocate, Mr Gopal Sankaranarayanan to discuss the issue of EWS and caste-based reservations, the complexity of the Aadhar challenge and air pollution litigation in India. Mr Sankaranarayanan discusses these issues by emphasising the need for nuance and balance in advocacy, considering its integral role in the development of constitutional law in India. They also discuss the growing polarization in public discourse today and judicial independence in the country.

LISTEN TO THE PODCAST

Rakshit

Greetings to all our listeners. Welcome to Arbitrary, the flagship podcast of the Law School Policy Review, where we interview eminent lawyers from all over India, who have greatly influenced our understanding of law, and its implications on policy. My name is Rakshit and along with Niveditha, we will be interviewing Mr. Gopal Sankaranarayanan. Not that he needs any introduction but he’s not only the youngest senior advocate to be recognized in the last 25 years but he has been practicing law for more than two decades now, and has been part of several constitutional cases most of us have seen, including a very recent EWS reservation case. He’s also a stern advocate against pollution. Considering your prominent role in Indian law sir, we are honoured to have you here today. Welcome to the show.

Mr Gopal Sankaranarayanan

Thank you for having me. To all the law school-ites watching, thank you for taking the time out, which you could have usefully spent otherwise.

Rakshit

Jumping straight to questions. My first question is that you recently appeared in the Supreme Court challenging the EWS reservation. However, unlike most of the petitioners challenging it, your approach was to deem economic reservations itself constitutional, but not the fact that these reservations were in addition to existing reservation. What prompted you to take this specific approach? And what is your opinion on the Court’s engagement with this argument?

Mr Gopal Sankaranarayanan

So now you’re aware that we’ve had a few exchanges on email where I said I’d like to digress from the theme somewhat and I’m going to start now. The reason I feel is that a large part of public discourse today, both in India and abroad, are based entirely on binaries. You’re either for or against. For instance, you are either for Modi or against him, for BJP or against it, for the Indian cricket team or against it. There’s no middle. It’s not possible to break it down issue wise and you say you’re for certain elements of it and not for others. The reason I’m mentioning this is that as advocates, lawyers and in any field outside of advocacy as well, I think it’s very unhealthy for us to operate in binaries. If there is any one arena of life or a type of profession where you should not operate in binaries, it is the law. This is because in law, nuance is a very critical and important part of how we develop our law and constitutional thinking. Most of the cases that I have dealt with were constitutional wherein constitutional challenges have come up. I have always believed that it’s based on an element of balance. What is the reason that we go for the element of balance? It is that the Constitution is a living document, and India’s constitution much more than most, because every time the Supreme Court or a high court interprets the Constitution, it’s taking the nature of what that Constitution is in a different direction. A very dry article 21 in 1950, has now been populated by so many different aspects of environmental protection, women’s harassment and protection for them, right to food and shelter, and things like that. That is the development of constitutional law. It requires balance, it requires you not to take it too much to an extreme that a future generation with future wisdom cannot reverse. I feel that in today’s date, with the kind of societal pressures and political thought that is evolving, you try and balance things as they stand now, but don’t shut the door entirely on future wisdom coming in.

The first time I encountered some stiff resistance and doubts about the position I was taking, was in the Supreme Court case of the Aadhar challenge, in fact, that was about six years ago. Many people challenged the Aadhar Act (the policy was challenged before it became law), and the Aadhar policy itself was challenged primarily on the ground that you did not have a law backing it. Subsequently after the Act came in, the challenge was that look, it’s meant for a specific purpose but you are asking for data from everybody without giving them enough information, and you’re violating their privacy by getting their biometrics and their identities and all that and many people, particularly those who are not well-heeled, well-educated enough, may just part with it because sarkar ne manga hai. Because of that, there was a very strong challenge taken primarily on the ground of privacy, there were other grounds but privacy was a central ground to that. Now, I was appearing for an intervener, in that case, the Center for Civil Society. Unlike many of the organizations who were challenging, my position was in the middle, I was saying that Aadhaar is fine. That’s the stand my client took – that Aadhaar is an important policy, and we need it for the people of this country but please limit Aadhaar only for the purposes that the act calls upon, which specifically is for subsidies, benefits and services. My argument was that it’s important, while you say right to privacy, you also understand that there’s a right to identification that people have. For many, many years, some of our best benefits and programs, strangely all named after the Gandhi family for several decades, had been making themselves available to middlemen, who would then claim 20-30 different identifications and take away all the grain, all the money transfers or whatever else, which was actually meant for the farmer or the person in the village, the person working at a construction site, because of the interference. Aadhaar we believed was a good program. It now showed that you can prove who you are which was earlier a big issue. You remember those days of ration cards and things like that. On that issue, how documentation is so bad in rural areas, and you can never confirm what your identity is, and you eventually have to bribe the guy, he has to give you, 100-rupee grant and 10 rupees goes back as a bribe. Aadhaar has done away with all of that, and it has given everyone a right to identity. But we nuanced it by saying that look, when you have the right to identification, please ensure that you don’t shove it down people’s throat and say, for anything you want from the government, you have to show your Aadhaar. You don’t have to show your Aadhaar to enter an airport, you don’t have to show your Aadhaar for you to get a bank account, you don’t have to show your Aadhaar to file an income tax return. It’s only when you are taking something from the public money, from the Consolidated Fund, where it’s drawn from the Consolidated Fund of India, that you can insist saying the only identification I’m going to allow and I’m going to use and permit you to use is Aadhaar – that the government is entitled to do. We thought that’s a middle path. If you feel that it’s an imposition on your privacy, don’t get an Aadhar, you just won’t get a subsidy or benefit. But if you want to get a subsidy or benefit, this is the condition for it. It seemed like a reasonable balance. The government took an extreme position, government said we can shove it down your throats, you can have it for everything and anything. Fortunately, the Supreme court’s judgement was in the middle. It stated that you can have it only for those purposes, which the law provides for.

In between, the issue on privacy was referred to a larger bench specifically because the objection to the right to privacy was taken. But unfortunately, you have two judgments of the Supreme Court itself, which has cast doubt on whether there is such a Fundamental Right, and they happen to be larger benches of six and eight. That’s why it went to nine judges and privacy was argued. When privacy was argued before nine judges, I specifically said that there is no question in my mind that there is a right to privacy in India. I’m going to spend too much time talking about it. But while the right to privacy exists, the question is, can you waive your right to privacy to any extent? Remember, when you were in your first year in constitutional law, we’re all talking about Basheshar Nath v. The Commissioner of Income Tax as the judgment to tell you that you can’t waive fundamental rights. In which case, if I have a right to privacy, can I or can I not waive it? If I can waive it, then is it a fundamental right? Now these questions are almost raised to a philosophical level. I don’t think we should duplicate those arguments of whether it’s there for income tax, whether it should apply to privacy. But it’s very interesting if you’re a student of constitutional law, that you can, in many cases, take a nuanced middle position, and that’s what happened with Aadhaar, that’s what I took even in Sabarimala by focussing on certain elements of that argument and I feel those arguments are healthy for the debate, though unhealthy for the advocate to stand in court because you have a bunch of lawyers saying why you standing this side, go to the other side. It actually really happened to me when it got to the point that a bunch of guys said you’re standing on the wrong side, you should be on the other side, you’re the enemy. If you take no one’s positions, you’re everybody’s enemy.

In EWS, I have for long been an advocate of the fact that caste-based reservation was an interesting thought when the Constitution started rolling. We had it specifically only for the SCs and STs in elections, therefore, in Parliament and the legislature. So, you didn’t have caste-based reservation anywhere else in our Constitution to start off with, there were provisions for it in Article 16, and a broad provision in Article 15. But nothing very specific. This entire OBC reservation thing came in with the First Amendment. Then many states started making laws, although there were pre constitution reservations that came from Tamil Nadu and Maharashtra. But over the years, what we have seen, and that’s, I think, the practical experience, that caste-based reservation seems to be creating a situation where even in those seats, STs and OBCs, there’s only a small, thin elite among them who are garnering 98%-99% of the reservation. There are nearly 2000 castes in each of these lists. In the President’s notified Schedule Caste list, you have over hundreds of castes, and out of those nearly 1200 castes never got reservation. People from those communities have never got a reservation. I mean, it’s a shocking fact that after 70 years, we have our own brothers and sisters not getting what they’re entitled to under the Constitution only because of what was supposed to be ironically an ameliorative measure for them, not being fully fulfilled. Economically weaker sections you can identify and decide who they are, and you can give it to them. But there was an exclusion provided in the Constitution when they brought this amendment in which exclude SCs, STs and OBCs. The minute you exclude them, then the SCs, STs or OBCs are not going to get this reservation. It’s a constitutional argument, it’s going to be based on empirical data. The constitutional argument I took was that you anyway have these reservations for these community groups and some people from them are going get it, and nearly close to 50% reservation across the country already exists. Largely, it’s about 27% for OBCs, a 22.5% for SCs at the Central level. In states, for very many states it goes beyond 50%, particularly because of the fact that in many states there are larger tribal groups. But you need to have a hard stop of 50% for whatever reservation you’re giving. Now, the three aspects of it, and I recommend the EWS reservation judgment as good reading for people who are coming to terms with culling out ratios and judgments. It’s a very good judgment to read for that purpose. There are five judges and each of them have different views. So, you have to cull out what the majority is. All five agree that there is nothing wrong with an EWS reservation, that they’re unanimous on. But on 50% being a ceiling limit, even for constitutional amendments, Justice Lalit, Justice Bhat, keep it open and they say that this issue is coming up with the Tamil Nadu reservation case, we’ll deal with that separately, just as Justice Dinesh and Justice Trivedi say that 50% does not have to be a hard limit. You’re stuck in a situation where the point was argued that we don’t have an answer today. We’re waiting for another case study. So I’m sorry, I’ve gone on too long. But I just wanted to expand on how you have to be sometimes in the middle and argue cases, it doesn’t have to be EWS with that and that’s my only argument. I was fine with saying EWS is good, but nuance it by saying that it limited to 50% and don’t allow them to cross the 50% limit.

Niveditha

Sir, I have two follow up questions with this. Firstly, my question would be: considering this argument that is coming from a balance and nuance or disposition, do you believe that this has been incorporated in the Constitution when you argue that there is a certain wisdom in not going to the extreme position where in future generations will not be able to reverse the decisions that we take? To what extent do you believe that this is encoded in the Constitution? To what extent do you think that this is present in our constitutional history through important case law. Second, if I could just go back on what you talked about with respect to the EWS reservation, when you talk about how over the years, there have been only a certain number of communities, a very small number of communities who have actually benefited from the reservation: does the concept of balance in this debate definitely mean that we need to cut down on some sort of political discretion or some sort of a quota or what exactly are we looking at in terms of a balance in the reservation debate?

Mr. Gopal Sankaranarayanan  

I’ll answer the second one first. On caste-based reservation, the idea to have SC-ST quotas in the Constitution was based largely on the debate that had gone on before the Constitution. Ambedkar and Gandhi and others had specifically talked about how Dalits have been discriminated for hundreds of years. When you’re talking about the balance which the Constitution tries to achieve, it tries to achieve balance between several centuries of undisputed castiest discrimination that had taken place against one particular community. The community may have several groups within it, but it was largely prior to the Constitution, treated as the untouchables. That community required to have some special measures for it and so, the scheduled castes were given those measures. The hope was the people in those communities would therefore be given a measure of upliftment and opportunity, which are not otherwise available. That was the idea behind [reservations].

Unfortunately, I believe that it went beyond that the minute we went beyond SC/ST. When we went into the entire OBC domain, we took the measures of historical discrimination, slowly, a little bit in a direction where groups which were actually socially fairly strong, and in large numbers, were now getting the benefits which should have gone to those who have historically discriminated. Please remember that a large number of those who are the OBCs were the ones who have discriminated against SCs, now you’re putting them both in the same benefit category effectively. We’ve seen over years that the strongest communities towards government formation in states across the country now in UP in Tamil Nadu, Bihar, Madhya Pradesh, and Rajasthan, Haryana, they’re all the large OBC communities, and they are having a fairly large say, and you have many communities who don’t belong to them saying, look, we want to be labelled as OBCs and you have OBC communities saying that we want to be SCs.  It can’t be that after so many years of reservation, despite an avenue being available for removing caste groups from the Presidential lists, till date, we haven’t removed a single one, which means that this reservation only added more groups, which means those who require reservation, those who are backward have just increased. Now, that can’t be the aim, right? It’s a race to the bottom. You’re saying we have through the quota method ensured that more and more people become backward. The idea was that less and less people should be backward. But that is not available today, not in numbers, not in the lists of the President. We’ve heard that the Rohini commission has come out with an interim report or something of sort, which seems to hint that only a very few communities actually garnered the benefits of reservation. My suggestion would be that it’s all heavily political, that you have to use something more neutral if you want to get rid of something in this country. It was my understanding that we needed to annihilate caste, to paraphrase what Ambedkar said. We’re not going to able to annihilate caste the more you asked me to identify what that caste is. We don’t want to be known by our caste, but we constantly insist upon it. Every time you decide to allow a caste census, every time a government documentation has asked you for what your caste is. You’re never going to achieve that. You have to go by more objective things like say your present employment, the education that you have had or which your forebears had, the kind of economy, that economic status that you have, whether you have a home etc. If you have reasonable sample studies, reasonable examinations of that and you’re pushing it then towards economic and something of that nature. I think it’s healthy, both because it takes you towards a more neutral parameter. Plus, it gets you to talk less about caste. That’s to answer your second question.

Now going back to the first one. I think there have been many places where there has been such a balance. The reservations itself being in the Constitution was part of that idea towards balance. We had Anglo-Indian reservation for nominated members, which existed until two years ago in the Constitution that we have petered and done away with. We have had balance always about the fact that this Constitution can be amended. Now, why would you permit amendment of the Constitution? I thought the founding fathers are all geniuses, if they’re geniuses, we should defer to them for our times to come. It’s because they were geniuses, that they understood that they don’t know everything, and that in times to come, we’ll give other people the opportunity to make changes to the Constitution. So, they had an amending provision, these provisions in the Constitution are very important because it gives the idea of balance, that you’re allowing others to take decisions to change the fundamentals of the Constitution. Then you have the basic structure doctrine being brought in, which provides for another type of balance, which says that look what does Golaknath say (which Kesavananda overruled) the overall goal is that Fundamental Rights over everything. That’s possibly better from an individual centric point of view but Kesavananda said, let’s not say all fundamental rights are inviolable, and that they can never be amended, let’s look at certain principles more than mere individual principles. So more than just Part III, let’s look at basic principles, which are the underpinnings of the Constitution, and still that cannot be touched or amended. That in my view, is also a way of achieving a balance. There are many things that the courts have evolved, PIL litigation, expanding locus standi, the method of appointing judges which is very controversial and in the news. The Collegium system is an invention of the court based on interpretation of words into, but I believe that those are all different ways of creating and achieving a balance in the Constitution. I think that’s one way of looking at how that had been about balancing the Constitution. There are bound to be many more.

Niveditha

Thank you. One thing that I would like to ask as a follow up would be, when you speak about the fact that allowing PILs and relaxing the locus standi requirement is a part of how the Supreme Court has, over the years tried to nuance the constitutional history in this country. Do you believe that perhaps, because the PILs being such an important part of the Court’s jurisprudence today, and the fact that it sparks a lot of public conversation, maybe it has become counterproductive in the sense that now because there is so much public discourse, it tends to get polarized and this kind of does reflect in the way PILs are conducted in courts?

Mr. Gopal Sankaranarayanan  

While I’m not so sure about PILs being responsible but polarization is happening elsewhere. I feel that existing polarization uses things like PILs, news channels, so-called debates in the evenings, columns of newspapers, tweets that celebrities put out. All of those are used by the polarized to feed on. I don’t think it’s the other way around. An innocent PIL about say, not polluting the waters in Bombay during a Ganesh festival is really meant to be about not polluting the waters during the Ganesh festival. You can imagine immediately how this would be polarized, by saying that this is anti-Hindu, and that these are being brought by people who are anti-Hindu. I believe that is pro-Hindu, if there is anything which is central to Hinduism and Hindu culture, it is about loving and protecting the living environment around us. That’s elemental to Hinduism. If people don’t understand it, it’s their problem. They’re not proper Hindus, it’s the guys who want a lot of chemicals and metals being put into a Ganesh statue and want to submerge them in lakes or ponds and rivers, and who feel that they’re doing Hindu culture a great service, who will look at this as a method of making a polarized argument. There are some cases where PILs may definitely be sponsored, maybe by a political party or somebody who has some axe to grind. I’m sure that happened. That’s always happened in lots of types of cases. But I don’t believe that PILs are responsible for the polarization. PILs are capable of misuse, of course, PILs lead to issues being polarized but those who are already polarized. It doesn’t have to be the other way.

Rakshit 

Thank you, sir. I agree with you on the fact that we need to maintain a balance. And there’s no one right answer. Maintaining a balance also recognizes the fact that there are shortcomings within policy itself. And going from this, I would like to segue towards something which you have yourself been involved in, which is anti-pollution litigation. Could you first tell us about your involvement in this and any takeaway you have had from the resulting PIL that was heard in the Supreme Court recently.

Mr. Gopal Sankaranarayanan  

It’s a PIL filed when my son was six months old. Four other lawyer parents, including my wife, were involved because we all had infants, and we are growing up in a very polluted atmosphere in Delhi. We thought as long as we should do something about it. If we were politicians, we would have done something different, but since we are not, the one thing we could do was file a petition. It asked for quick immediate measures to try and roll back the main contributors to pollution. One is our slow transitions to better fuels. We were still on BS3 fuels at that time and I think our petition helped in quickly jumping to the next stage, because that’s what the government came and told the court. They said, “They’re skipping directly from BS4 to BS6 without going to BS5. It would have taken many more years if we’d done that.” I think that was an immediate contribution of that. You won’t have that touted about but it’s available on the ground. You can see the difference that the fuel changes made – not to do with firecrackers, construction dust, and many other contributions.

Now, of course, crop burning is an issue that people see as one of the main factors but the over the last three months, we have seen Bombay overtaking Delhi, as far as air pollution is concerned. It is the second most polluted city in the world today, and you cant attribute that to crop burning. Obviously, there are many very India-centric reasons for why we have big air pollution, and one of the biggest reasons now in Bombay, is construction. There’s a lot of project development happening there with bridges and the metro. You go to Bombay now and you’ll just see a dense cloud, you look towards the horizon and that’s unhealthy. I’m hoping that apart from whatever advocacy can achieve, also the fact that we had the petitioners being three infants, for the first time in the Supreme Court, makes it something which get people to sit up and take notice. Therefore, there is an awareness and awareness is very important for air pollution. So unfortunately, we’ve had COVID, making all of us habitual mask wearers, but much before that, in Beijing, when it was very polluted in 2014 and 2015, any photo you saw of the streets of Beijing had thousands of people just wearing masks. Thus, I think it necessarily has to become a habit of those who are living in this polluted air in India, that you start wearing masks and take precautionary measures until either the courts or the government step in with some hard measures.

Rakshit

But I have two follow-ups to what you’ve said. My first question is, do you think judicial involvement with respect to something that is policy centric with respect to air pollution is suitable? Or should this be left to the mandate of the legislature and the executive? And my second question again, falls back to balance. You did mention crop burning. Now, with respect to crop burning, some may argue that it’s done so that farmers can clear their fields quick in order to ensure that they can plant the next season of crops quicker. So, in the absence of facilities, how can we ensure that two conflicting but equally important interests are balanced?

Mr. Gopal Sankaranarayanan    

To answer the first question specifically, as far as air pollution, air pollution was a huge issue in Delhi in the mid-1980s. 1985 is when MC Mehta filed that petition initiative to start. In fact, if there has been any solution to air pollution in India, it has only come from the Supreme Court of India and absolutely nowhere else. Absolutely nowhere else. In the late 1990s, between 1995 and 1999, the levels of air pollution in Delhi were the highest in the last 60 years. In the last 60 years, the highest levels. We didn’t have meters that check it, but if you had used comparative meters, you would have found that it would be in the upper six hundreds and seven hundreds. Now, what led to the reversal of that level of air pollution? It was several judgments of the Supreme Court and MC Mehta case coming from the pen, primarily of Chief Justice Kirpal, and you needed somebody with spine to step-in and take a tough stand, which is what he did. His first direction was to get rid of all the brick kilns, which were polluting because they use raw materials right around Delhi, and they had many of these red brick making facilities. There’s always chimneys swirling around dense clouds of smoke. He had them relocated more than 50 kilometers away. As you can imagine, that kiln owners and employees came running saying you are attacking the poorest of the poor, etc. It didn’t matter. Relocation happened and they were all shut down. The second was polluting industries. There were many polluting industries – chuffing smoke, sulphur, etc, into the skies right around Delhi. More than 180 big polluting industries, all sorts of factories. They were all directed virtually overnight to be shut down, and then to be relocated more than 100 kilometers away. The third big measure was compulsively to ensure that all public transport buses and public transport taxis would go from diesel to CNG, and that happened compulsorily. As you can imagine, the transport and auto lobby are huge in Delhi, but they couldn’t withstand the might of the Supreme Court. So, it was actually physically shoved down their throat. In three years time, the levels had come down to very healthy levels – from 600, it was around 70 or 60. Now, that came only from the Supreme Court. And this, particularly with air pollution, gave us great confidence, 15-16 years later, that if it has to be done, it has to be done by the Supreme Court. And, it can only be done with some tough measures being invited by some tough judges at the hands of hopefully some tough lawyering.

In this period, in between, we had an organization called EPCA, which has been set up by the Supreme Court along with the Ministry of Environment, Forest and Climate Change, and I am sorry to say that on their watch, despite many soft gentle graded responses and plans that they had, Delhi became the most polluted city in the world. So, soft measures, gentle treading in an emergency situation is not the way to go, and that has been the government’s approach to this issue. All of you are young. I’ve seen a lot of positive energy in the climate change space. We know what our targets are. We know the fact that we are already breaching many of the targets of the world set to try and avert climate change and global warming. Unless you treat these as emergency situations, we are going to be in a problem. Right now, many of the judges in the courts across the country, many of the people that all of us have elected to government, are of the view that let’s balance things by having sustainable development, lets allow development to happen, lets allow endless road-widening projects to happen and endless bridges to be made. Connectivity has become the most important thing in the world, meanwhile asking for thousands of trees to be cut, for rivers and water bodies to dry up and be filled up so that you can have housing projects done. I think the more we go slipping and sliding down and have more towns sinking into holes in the Himalayan hills, I think we are going to be moving backwards. I think the time for sustainable development, compensatory afforestation, all that is gone. I think the time has come for us to say, okay, enough is enough. Either we are going to have a healthy and clean world for us and our children to live in or we are going to just pretty much call it quits and allow everything to go to dust.

Niveditha

A lot of critics, for example, point out the fact that the brick kilns were ordered to be relocated, taxis were possibly made to shift to CNG, and things like that and, you see critics like Anuj Bhuwania, who point out that these are very coercive steps which did not take into account the fact that there are economic hardships. I do agree that on the other side, we do have a very pressing issue in terms of the right to just breathe clean air, but do you think that going back to your concern about balance and nuance, perhaps the Supreme Court is not institutionally able to manage multi-party issues such as air pollution? It does not necessarily mean that they are able to listen to all parties, given the amount of time that is involved in this. Perhaps, because of this, they are institutionally not able to even incorporate the kind of balance and nuance that we talked about. Do you think that, perhaps then, we need to sort of shift more by applying political pressure on say, the legislator or the executive, rather than the Supreme Court, even while recognizing that most of the action against air pollution has come forcibly only through the Supreme Court in the past, say, 20-25 years?

Mr. Gopal Sankaranarayanan      

I think that there is a very strong legal argument as to why the only institution that can do this balancing is the Supreme Court – because it is its job to do it. They take an oath to uphold the Constitution. Somebody comes to them and says there’s an article 21 violation going on, and somebody else, who’s the polluter, comes and says there’s an Article 19(1)(g). Who else is going to balance these competing fundamental rights? Nobody else. Not even the parliament, because eventually that will be tested in the Supreme Court. So why take over the roundabout process of leaving it to slumbering politicians to wake up, maybe get impelled to make a law and then have it thrashed out in the Supreme Court whether the law is valid or not? One way or the other, it’s going to come back. Let’s accept it. Why waste our time? That is not an answer my friend Bhuwania has, because every single political pressure-oriented issue eventually comes to the Supreme Court and that is where it’s final. It’s not final in Parliament. And, if it’s not an issue that is that emotive and that has that much political polarization, then it won’t be challenged, it won’t be even relevant. They can make laws endlessly on cattle trespass, nobody is going to be particularly so excited as to take it to court. In fact, and I know, Anuj has just written a book on this issue, I think a lot of it has to also contemplate the segments where deference to the legislature and its wisdom is advised. In the last 10 years, if you look at the amount of time that they devote to debates, you will find that it’s paltry, it’s abysmal. If you see the kind of objections and invitations that have been entertained by Standing Committees of Parliament, you will find that the contributions are, again, extremely minimal and marginal. They are not engendered and, in any way, strengthened the debate in any fashion. If you take a look at the Insolvency and Bankruptcy Code, over the last six years, it probably had more amendments to it than virtually any other law that I know of. More challenges, more interpretations than anything else. Now, that is not a PIL-oriented thing. But even there, the legislature has not devoted enough time and effort to try and ensure that all aspects are addressed. Many of the PIL-oriented cases are not being addressed by the legislatures. Every time we talk about judicial overreach, judicial activism, we are not talking about executive underreach, executive not even bothering to do its duty or a legislature that is abdicating its duties constantly. And who is going to fill that space? PILs are meant for specifically that space.

Rakshit

We have seen that you have spoken about how the Supreme Court balances two conflicting rights. Now, I would like to ask you about how or whether the Supreme Court should be balancing a conflict that has come before it versus, say, economic considerations. A report by the NITI Aayog found that five judgments by the Supreme Court had caused, roughly, states to lose about Rs. 8,000 crores in revenue. Do you think that the Supreme Court should in fact, consider economic considerations while delivering its judgments? Or it should be completely divorced from the same?

Mr. Gopal Sankaranarayanan      

That is a very difficult question to answer, and I will be fair. I think some of the cases, which you are referring to, must be in the license cancellation cases of coal and 2G licenses. Now, I wouldn’t comment on the two of them because I was involved as a counsel in them. But, I would say that definitely, it has a bearing, and I think it would have a bearing from an economic and financial point of view. I think that should be borne in mind as a factor if the other factors are tied or balancing. It cannot, in my view, be a balancing factor on its own because then what you are saying is that this justice system becomes money-oriented and not about law implementation. If a law has been breached, if a particular policy with reference to tenders and auctions have been breached, if you have tried to favour one particular party, in my view, it does not matter if the value of the tender was, say Rs. 6000 or Rs. 600 crores. The answer has to be the same. It should not matter. But, if there is something to be said on the other side, very often you will find that much of the final decision-making that courts make in this country are based on the consequence of an interim order that they have passed. Suppose, I have won a bid through fraud and the bid, I am just using an example, the bid is to say supply electric buses to your city of Bangalore. Now, somebody challenges it saying there is fraud in this but the court does not stay it. Therefore, the bid is awarded, contract is executed, and I start supplying buses. At the eventual end, when they do find fraud, what are they supposed to do? Are they supposed to return the buses to me? Are they supposed to cancel the tender? Because remember, sitting in those buses for the last three years, where the litigation has been on, are all of you, members of the public, using electric buses, but those buses are mine. So, when you put yourself in the judges’ seats, how would you answer that question? I am genuinely asking you. I want you to answer. Rakshit, how would you answer that?

Rakshit

From that perspective, whether the contract is for Rs. 6000 or Rs. 6000 crores, it should not matter to me because the question before me is fraud.

Mr. Gopal Sankaranarayanan      

But you have public interest balancing. There are people sitting in those buses. Now what you do. So now it’s not money, right? It’s public interest getting involved. I am saying every time you talk about money, you are not sitting there alone in a vacuum. There is something behind it. If there are people using telecom licenses, if there are people actually employed in coal mines and the coal is being taken out and being used for steel factories, for exports, then there is a public interest element of a sort involved. But there has been large-scale corruption of some sort or maybe some way of violating clean and transparent conditions. So, in my view, it’s a very difficult question to answer and it depends to a large extent on the facts of each case. I think it is very simplistic to say that five litigations have caused this.

I would be very curious to know if the same people are bothered analyzing how much of the litigation in this country are fostered by governments. The biggest litigator in this country is the Government of India. Now, if you cancelled all Government of India and State government litigations against individuals and corporations, leaving aside their political fights which keep coming to courts, if you leave that aside, can you imagine the cost this country and the amount of saving that we may have? It goes into lakhs of crores. Maybe we should turn a scanner on that and find out what is the basis on which one poor pensioner’s case is appealed, challenged, brought in special leave petitions, leave granted, becomes an appeal, and it takes nine years. And who is held responsible at the end of the day when the government loses? The pensioner is dead. His widow is not coming to even make claims and they feel very happy that they saved themselves a few lakhs but, that is the system today.

Niveditha

Yes, sir. I will just segue a little bit into an issue that has been, as you also mentioned earlier in our discussion, something that has occupied public discourse. We have seen a lot of lawyers intervene in decision. That is the sort of criticism that is being levelled at the judiciary, both in terms of the kind of process by which appointments are made through the Collegium system, as well as the power to, say, punish contempt of court, and so on. Some of this criticism is well-intentioned, it is well-substantiated but some can be labeled as malicious as well. In your opinion, both in terms of the substance of the criticism, what effect do you think it has on judicial independence and what are some steps or do you believe that some steps should at all be taken by the judiciary to take into account these criticisms, or at least try to mitigate them?

Mr. Gopal Sankaranarayanan      

I think the difficulty in this entire issue has been that the judiciary has to play a dual role. It is not only the administrator of an appointment system, but it is also the adjudicator of whether that system is the best system or not. And, in discharging that latter role, it has come under severe criticism. It first wrested for itself, a procedure which was not contemplated strictly by the Constitution. The Constitution did provide for consultation with the Chief Justice of India. Today, that has been interpreted to mean the concurrence of a Collegium of five for the Supreme Court and three for the High court. Now, that is not what appeared to have been contemplated. In whatever stretch of language, lawyers can give to the words of the Constitution, that does not flow from Article 124. So, I feel that having done that, it has become somewhat of a moral responsibility for the judiciary to show that this is a sterling system without flaws. It becomes difficult, because eventually, this system much like the previous system, is manned by human beings. The fact that career politicians manned the previous system does not change the element of a political-oriented approach by individuals, who have been given the job of adjudication by which, I mean that judges are also equally available and capable of the push and pull of political compulsions, friendships, relationships, biases, as anybody else.

In fact, Arghya [Sengupta] wrote an article recently in one of the newspapers supporting the nomination of Justice Victoria in the High Court of Madras saying that, Look, you know that she has very transparently been labelled and deemed herself as a BJP sympathetic individual. Maybe that is a good reason to make her a judge, rather than oppose it, because judges need to come from all hues and colors, much like in the US. Again, that is an issue of binary. You are either a Democrat judge or a Republican judge. Both sets of judges have often surprised us with the stance they take. The same thing here, just because Justice Victoria has had a BJP background does not necessarily mean that all her decisions will be BJP oriented. Maybe her sympathies will be there in a particular case and like Arghya argues, maybe it’s a good thing that you have different approaches available. We need to be open-minded to say that, rather than condemn everything, just for one or two reasons.

But having said that, when the Collegium takes these decisions, I think the Collegium is impelled to restrain itself, because it sends those names out and then leaves it to the government to take a decision. It’s only in the last few months, under Chief Justice Chandrachud, Justice Kaul and Justice Joseph, that when that Collegium has been sending names out, they have been sending specific express instructions to the government saying that we want these to be appointed in this order first, then you can take our second set of nominations that we have sent because the government has gotten into the habit of picking and choosing. I think that is where the judiciary is a little caught because it is playing this dual role. The judiciary or the judicial side needs to give a direction to government saying that, “Look, if you do not take the decision within four weeks, your Law Secretary will be held guilty of contempt, or somebody else will have to face the music.” You have to take a tough stand and well if it plunges us into a constitutional crisis, it does. But that is a stand that is necessary at some point.

Niveditha

With this we would like to wrap up our discussion for today. On a much lighter note, would you like to share with our readers the kind of books or movies that you have been consuming recently?

Mr. Gopal Sankaranarayanan      

I have been recommended, and I have been reading with great interest this book called ‘The Magicians of Mazda’, which is a thriller of a sort, and it is actually very revealing, in a great degree about a community which has had, coincidentally, a big role to play in the judicial space – the Parsis. This story is by Ashwin Sanghi, it is part of his Bharat series. I have not read any Ashwin Sanghi before, but it is fascinating because it tells you about how the Parsis first came to India and the kind of secrets they carried with them. It is almost an epic of a book which he squeezed into a story of abduction, lots of narrative in Iran, etc. I am finding it interesting. I am reading it for two reasons – one, I find it interesting, two, to stay away from my phone. I have begun to realize that all of us are getting too addicted to social media and I am setting a bad example for my kids. But I remember you guys sending me a questionnaire of sorts saying what kind of books and movies about law and related to law do I like. One has stood out for me, actually, two of them. One is called ‘With Honors’. It is a mid-1990s film about a bum who befriends a student at Harvard. It has a nice segment at the end, which I found very interesting, it is very nice. The hero of that movie is nominated for the Oscars this year after a long hiatus. And, the other one is ‘Primal Fear’, which also I found fascinating because of the twist at the end and it is a great story if you are interested in criminal law and interested in the kind of defenses that you can take on insanity, etc. So, there are many more films. I am a huge film buff, so I collect and watch movies from the 1920s till now. Same thing with music and with books. I believe all of those have, in many ways, informed and influenced who I am, and I always take its assistance when I am formulating ideas for a case or making approaches. I think it is always healthy. It adds to who I am. The other thing that I have been up to is breaking my hand because I was playing cricket, which, as somebody advised me the other day, I am too old to play.

Niveditha

Thank you, sir. I am sure you have a very busy schedule. It is a Saturday evening, and yet, you have taken time to sit down with us. This has been an incredible discussion, and we thank you for spending your time with us. Thank you, sir.

Mr. Gopal Sankaranarayanan      

Thank you. Thanks to both of you. Thanks, Niveditha. Thanks, Rakshit. All the very best, and I hope this would be informative for the three or four people who hear it eventually.

Aakriti Rikhi and Manvi Sahni provided technical and scripting assistance for the interview.