The rich have lots of money and since lawyers cost money, the courts are where they have the upper hand. The poor, in India, have a lot of votes, which is why, if you are pro-poor, you want Parliament, not the Bench to have more power.
Still, even if you have great faith in the Judiciary, you can't expect them to do what you want absent any evidence or sound legal argument presented in support of that decision. Failure to understand this simple fact means that India is now stuck with crazy 'scholars' who spend their time abusing judges in the same childish manner that John McEnroe used to abuse tennis umpires.
Gautam Bhatia is one such hysterical imbecile with zero understanding of the law. He thinks a judge can be sued for defamation for something he said in his judgment! I'm not kidding. He wrote 'in a functioning legal system, lines such as these (lines from a judgment by Khanwilkar) would invite an immediate action for defamation.'
Why stop there? Why not abolish parliamentary privilege and lawyer client confidentiality? The plain fact is, if the utterances of Judges and prosecutors and defence lawyers and witnesses aren't protected speech, then there can be no free process of judicial inquiry. Moreover, reportage of court cases too would be imperilled.
Bhatia, a virtue signalling cretin, is not on the side of the poor or the weak. He is on the side of the rich and powerful. Can a beggar bring an action for defamation? No. But a billionaire can silence whom he likes with SLAPP actions. Still, it's good to know that Bhatia wants to destroy the legal system. This explains why he has published a book titled 'Unsealed Covers' which is merely a collection of the sort of blogposts of his which I have previously shown to be wrong on the facts, wrong in law, and utterly mischievous when not utterly mad.
The purpose of this book is not to draw any grand conclusions about the judiciary or the state of Indian constitutionalism.
But everybody knows both are shit. There may have been a time when nutters like Bhatia thought the Judiciary had magical powers. But the Law is merely a service industry- a shitty one in the case of India.
Rather, the central focus of this book is to highlight the ways in which the Constitution is a contested terrain—
why bother? It is obvious that the Constitution is only referred to in justiciable- i.e. contested- contexts.
and which have everything to do with power and powerlessness,
because powerless people can hire expensive lawyers- right? Bhatia believes Judges have magic wands. If only the Constitution could be interpreted to mean 'give everybody a Rolls Royce car', then a Judge could pass an order to that effect and make it so.
who wields power and who is subjected to it,
that is determined by economics and military or other coercive 'threat points'. It has nothing to do with the Constitution. It is obvious that the Constitution can remain the same while the whole economy and power structure is transformed. Equally, the interpretation of the Constitution may change completely but the Bench may simply be ignored.
and the actions of those whose task it is to mitigate the impunity of power.
When has this happened? Never. The fact is, plenty of Supreme Court decisions have been ignored in their entirety. Still, referring matters to the Bench can give politicians an excuse for delaying matters.
If, at the end of this book, the reader has a clearer sense of
not just Bhatia's cretinism but that of the entire 'Law-fare' PIL brigade.
It must be said, there have been Judges who believed their function was essentially political. Justice Muralidhar, who welcomes Bhatia's book, says judges make political choices when they accept or reject an argument. The problem here is that if the decision was itself political- as opposed to wholly protocol bound and judicial albeit having political consequences- then the judgment is impugned and can be overruled, ignored, or be used in a manner opposite to that intended. This follows from the fact that judges have no power in themselves though, no doubt, they may be used to serve a corrupt or convenient purpose. But this could be said of any professional. A Surgeon who slays patients whose politics she dislikes is not making a political decision. She is making a criminal decision. On the other hand, if she joined a political party or participated in civil society protests, her actions could be said to be political. This does not mean they are necessarily legal or wholesome. But they are not in conflict with the code of her profession.
Indian journalists who cover Court proceedings face a significant professional constraint. They aren't allowed to make up stuff or engage in hysteria or histrionics. Bhatia, tweeting from inside a Court, faced no such constraint. He was seeking to intimidate or entice judges into acts of professional misconduct. What has been the outcome? He has undermined faith in precisely the sort of 'commentariat' which might have served some useful purpose in keeping the Judiciary on the straight and narrow. If his sort of hysterical arguments are entertainable in a Court of Law, so are the even more bigoted arguments of those who have muscle or money power on their side.
these contestations and of the constitutional pathways towards freedom and dignity that remain open notwithstanding sustained efforts to close them, I will have succeeded in my task…
Bhatia will have succeeded in his task if he can make at least one person as stupid as himself. The plain fact is, if Judges are seen to be virtue signalling cretins, their judgments will be ignored or reversed.
I believe that, in essence, constitutions are ‘power maps’.
They aren't. Power is Game Theoretic and a 'power map' would feature gradients of 'Banzhaf-Coleman' or other such power indices. Shapley values are what is of the essence here.
The plain fact is that a Constitution may be unwritten or unchangeable while who holds power changes significantly. One may say that when the distribution of power changes, the constitution may be interpreted differently.
A constitution creates, organizes, facilitates and constrains power.
No. Power always already exists. It is organized and facilitated by extra-legal mechanisms and is constrained by other extra-legal mechanisms. The Judiciary may mediate this but, if it is lethargic or staffed by hysterical lunatics, it may be wholly disintermediated.
A constitution, written or unwritten, may specify an ideal system of protocols though, of course, no such thing might actually exist. The plain fact is, no existing state of society corresponds to anything mandated by any Constitution, written or unwritten. Justiciability arises out of unconstitutionality. In some cases, no existing remedy under a vinculum juris exists for something which is unconstitutional. Judges can't create that remedy sui generis. To take an example, a constitution may say there is a fundamental right to food or education or happiness. But if there isn't enough food or money to pay for education, or hookers to make hobos happy, then there is no remedy under any bond of law. The Judiciary don't have magical powers to turn a Constitution's 'wish-list' into reality.
Bhatia wants a new doctrine re. 'an unconstitutional state of affairs'- which would be the judicial equivalent of Indira declaring a State of Emergency with this difference. Indira could actually jail her opponents and forcibly sterilize millions. Judges have no such power. Bhatia thinks there can be 'a legal ruling that allows a constitutional court to acknowledge the failure of both the legislative and executive branch of the government to enforce public policies against widespread and systematic violations of fundamental rights.' But what would be the point of such acknowledgment? Everybody, except nutters like Bhatia, understands that Governments are not omniscient or omnipotent. They can't even stop murder or rape from occurring on a wide scale. They can't prevent poverty or, if there is a food availability deficit, even starvation. They can't force invaders or insurgents to become sweet and reasonable. There is no need for Judges to acknowledge this. On the other hand, to keep nutters like Bhatia off their backs, Indian judges should have an expansive 'doctrine of political question' to make it clear that it is Parliament and Parliament alone which has the power to raise revenue and thus procure public goods and services. How they do so is a matter of policy. This is 'niti', under the charge of 'netas'. It is not 'nyaya'.
Furthermore, because of the ambiguity of language, a constitution is contested terrain:
No. Justiciability means something is being contested. One side to a dispute may claim there is ambiguity in the language of a contract or other bond of law on which the other side is relying.
A legal system may be said to have a Constitution- even if it is unwritten- but legal systems are only concerned with Justiciability. Judges have no responsibility (because they have no ability) to bring about any particular state of affairs. They can merely order an obligation holder to supply a remedy to right's violation. But they may be wholly unable to compel the obligation holder to do any such thing. This is why 'incentive incompatible' remedies wither on the vine.
The problem with the law is that it costs money and time to pursue a claim and then, more often than not, it costs even more time and money to get a decision enforced. The game is simply not worth the candle for the vast majority of people.
different visions of power are contested on the touchstone of its text and structure, with the courts being called upon to act as arbiters between those visions.
Why stop there? Why not say courts act as arbiters of dreams? Also they can decide if a particular fart is whimsical or poignant.
The essays in this book—and the themes under which I have organized them—reflect the many dimensions along which power has been contested
without power being affected in the slightest
on the terrain of the Indian Constitution in recent times.
What great things has the Bench achieved? The Nationality Register in Assam? Detention Centres? The decision that J&K had no shred of sovereignty or that the deity Ram Lala should have a big Temple built for him? But all these things would have happened anyway because Hindus are over 80 percent of the population. True, this also means more caste based reservations though the BJP may dilute this with an expanded 'Economically Weaker' Category.
The issue of contestation is important:
No it isn't. Neither contestation- e.g. saying 'Hindus should be a minority not a majority in India'- nor transgression- e.g. fisting yourself vigorously so as to overthrow Patriarchal Neo-Liberalism- actually achieves anything.
You can tell stupid lies about the Law but, sooner or later, people think you are simply a stupid liar. You have changed nothing for the better but simply caused a nuisance.
There is no point scolding Judges when, the fact is, Judicial decisions are only important if they are enforced. Sadly, if they are not 'incentive compatible', they won't be enforced. True, you may get to say 'Prime Minister is defying the Courts!' but nobody is will listen to you because it is obvious that the Prime Minister does not have a magic wand. He can only do what it is possible and convenient to do. Nothing more.
Constitutions are not closed or self-interpreting texts,
In India, the Bench says it alone can interpret the Constitution. A self-selecting Bench could be said to be a closed hermeneutic circle. Sadly, Indian judges- like Indian lawyers- are shit though not as utterly shit as nutters with PhDs like Bhatia. Still, this means that the Bench is always overruling or contradicting itself or simply doing stoooopid shit. So what? It has little power. The Law is merely a source of delay or a tool of harassment. It is easy enough to evade its provisions if it pays to do so.
and are best understood as being sites of ongoing struggle.
A struggle between venal lawyers working for warring crooks- sure. It is a different matter that in a country with dual sovereignty- like the US- constitutional law is important though, obviously, nothing deeply unpopular can really be pushed through. India hangs together not because of lawyers and judges but because it can do extra-judicial killing on an industrial scale.
Thus, wherever possible, I have sought to highlight this struggle, whether it is through duelling high court judgments on personal liberty under the UAPA, or the tension within the Supreme Court’s jurisprudence on the relationship between reservations and equality.
In both cases, the Bench can be ignored or, if there is political mileage in it, a particular regional party can get the ruling administration to put the relevant legislation under the Ninth Schedule in the manner that Jayalalitha did.
It is not that the Bench is wholly useless. Rather, some of its decisions can be Schelling focal public signals which establish useful uncorrelated asymmetries and thus eusocial 'bourgeois strategies'. Some judges understand this. Others have delusions of grandeur. But they retire soon enough and the Bench seems to enjoy overruling itself.
Highlighting this struggle not only illumines something important about Indian constitutionalism, but also, I believe, serves as an antidote against despair.
Some shitheads pretended they were doing some 'struggling'. Then everybody realized they had achieved nothing save make a nuisance of themselves.
If you want to achieve a political result, you need to do politics not go running to the law courts. What has been the outcome of 'Lily Thomas'? Nothing at all. The Bench will always reinstate an MP who has been disqualified even if the crime is murder because murder cases drag on for decades. Look at Sidhu. First the Bench exonerates him in a manslaughter case from thirty years ago and then it overrules itself and he ends up doing 9 months. Why bother with this charade?
As many of these essays have been written from the perspective of a participant,
a useless one
I should also make clear that neither I—nor this book—is, or attempts to be, ‘neutral’ in this ongoing constitutional struggle.
There was no struggle. Nutters like Bhatia were pretending that Indian Judges weren't as shitty as Indian lawyers though, admittedly, Indians with PhDs in Law are shittier yet.
I approach constitutions, constitutionalism and courts from a perspective that is sceptical of structures of power,
Power exists and has a structure. Why be sceptical about it? I suppose this cretin means 'I am sceptical about the claim that power of various sorts will be exercised in the prescribed manner'. But such scepticism is ubiquitous. It is the reason that so many matters are justiciable.
and authority, opposed to the concentration and homogenization of power, and suspicious of any form of constitutional interpretation that seeks to subordinate real, flesh-and-blood human beings to abstractions such as ‘national security’ or ‘the larger public interest’.
You have a right to be suspicious of others and they have a right to be suspicious of you. Such suspicion may however get you beaten, incarcerated or simply killed. Paranoid nutters raging against things done in the public interest represent a nuisance which will, sooner or later, be very discourteously curbed. Anybody can tell stupid lies. If you say the police are killing innocent tribals, not Naxals, then the police may frame you as a Naxal. You then discover that the Law's inordinate delay grinds you down in the same manner that you have sought to ground down those paid to uphold it.
On the other hand, this approach supports the democratization and distribution of power,
How? Telling stupid lies only means you are a stupid liar. You haven't affected power or wealth or truth or beauty or anything at all.
celebrates the existence of diverse and plural ways of living, and privileges human dignity and freedom over invocations of raison d’etat.
But this can just as easily be done by fisting yourself vigorously while gazing wistfully at a basket full of oranges.
Further, I believe that this ‘anti-hierarchy’ approach is characteristic of Indian constitutionalism in its best moments, moments that infuse life into that old adage about newspapers: ‘To afflict the comfortable and comfort the afflicted.’
A retired CJI is welcome to talk in this fatuous manner. We respect him because he spent a lot of time doing stupid boring shit which was cool because he was a stupid, boring, shithead. At least he didn't masturbate in public.
Let us now turn to a typical passage in Bhatia's batty book-
Ongoing proceedings before the Supreme Court pertaining to the spate of home demolitions, which have been carried out across the country by municipal authorities, present a striking example of how judges can continuously reject the evidence of their eyes and ears.
Evidence provided by the eyes or the ears or the nose must be elicited from witnesses, not judges. A judge who happens to witness a crime is automatically disqualified from judging the case. You can't be a witness as well as a judge. Bhatia doesn't understand this. He thinks that not only can a Judge be sued for defamation for saying 'x is a rapist' but he must also provide evidence 'of his eyes and ears' of the rape. How fucking stupid is Bhatia?
These proceedings follow a similar pattern. It is pointed out to the court (as we have discussed previously) that the home demolitions—which have now been going on in a sporadic fashion for many months—are punitive and designed to extract retribution for participation in protests.
It could also be pointed out to the court that Power is very naughty. We should be suspicious of it. Judge should kindly provide evidence of his eyes or ears or arsehole that Power is fucking everything up. Judge should therefore order Power to get distributed in a democratic fashion. Why is Judge not doing as I tell him? Why this obsession with hearing both sides of the case and following judicial procedure? It's as though these stupid Judges are doubting that we are very clever and good at Law! That is DEFAMATION! Let us sue the Judges!
The state counsel argues that the municipal authorities are acting in accordance with local laws. The Supreme Court bench—it tends to change—makes a rhetorical statement about how demolitions must follow the legal process, makes another rhetorical statement about how it can't pass 'omnibus' orders against the demolitions, and then adjourns the case, as it did today (while the demolitions continue).
Such demolitions are legal. In any case, there is a remedy for unlawful demolition.
In continuously refusing to take cognizance of the fact that the home demolitions are punitive and illegal
there is no proof that they are illegal per se. Nothing punitive is illegal by that reason alone.
and follow the same pattern across the country, these Supreme Court judges reject the evidence of their eyes and ears.
The Bench has not witnessed any such demolition. Very few upper middle class professionals have done so.
They manage to ignore the fact that, coincidentally, the home demolitions in question come immediately on the heels of a protest that turns violent, time after time, and are specifically targeted against people who are named by the police in FIRs about rioting;
which is a crime. Bhatia thinks it is a public service. He has shit for brains.
that in Uttar Pradesh, Javed Anand's
this cretin means Javed Muhammad. Anyway, his family claims it belongs to his wife. How fucking useless is Bhatia?
home was demolished one day after the UP Police claimed that he was the 'mastermind' behind the 10 June riots, and that in Khargone (MP), Khambhat (Gujarat), Nagaon (Assam), Jahangirpuri (Delhi) and in other places, the exact same pattern is followed (indeed, in Jahangirpuri, demolitions swiftly followed a letter from the BJP leader to the mayor, asking for bulldozer action against 'illegal properties of the rioters').
It is perfectly proper to proceed against a criminal in a minor manner while investigating more serious charges. Al Capone was put away for tax evasion. One of the first things one might verify in the case of an accused person, is their place of residence. To confirm that it is a permanent place of domicile, it would be natural to refer to property records. If the construction is illegal, why not demolish it immediately? The administration is welcome to point to a correlation between demolitions and indulging in criminal activity. Similarly, though UK Judges issuing sentences in 'hoody riot' cases were not concerned with American Visa requirements, the Government was at liberty to point out that looting could result in a criminal sentence which would prevent you going on pilgrimage to Dollywood or Graceland.
The plain fact is, in the case of demolition, if the thing really is illegal, the remedy is to seek damages. It simply is not true that there is a fundamental right to property. Nor it is the case that in rem actions are barred by an ad personam punitive motive.
I challenge any reader to find one paragraph in anything which Bhatia has written which isn't wrong on the facts or wrong on the law or otherwise utterly mad or mischievous or both mad and mischievous. No wonder Scroll and other such subsidized portals think the sun shines out of his arsehole.
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