THE ORIGINALIST DOGMA

The decision of the US Supreme Court rec ognising same-sex marriages across states has brought to the fore an impor tant concept in American constitutional law: the concept of “originalism” expounded by the dissenters on the bench. The ruling has sparked a debate across India, particularly since not too long ago the Indian Supreme Court had set aside a Delhi High Court ruling that consensual same-gender adult sex is not criminal. The debate over originalism is relevant for India.

Simply put, “originalism” refers to the principle of interpretation that views a constitution’s meaning as being fixed at the time its enactment. It does not necessarily mean an absolute dogma of never changing at all with the times. However, it does entail a dogma of considering libertarian reading of the constitution as “straying” from what was originally envisaged.

To be fair to originalists, they do not necessarily stick solely to the “letter of the law”. However, they may effectively end up doing so. Their interpretation of the “spirit of the law” is their reading of what the original authors could have intended as the spirit in those times.

For example, if a constitution were to ban the death penalty by hanging, an originalist may not restrict his reading of the ban solely to “hanging”. He may say the ban also extends to beheading. However, he could well hold that some other form of capital punishment not originally envisaged is not banned. He could argue that the new form of inflicting death could never have been envisaged when the constitution was originally written. Equally, he could uphold a new-age death penalty process by arguing that it was the pain of hanging that drove the spirit behind the ban, and the new form of death penalty does not inflict the same level of pain.

That is how originalist dissenting judges in the US Supreme Court’s same-sex marriage ruling get to make arguments like: “dignity is not a state-guaranteed fundamental right”. They find same-sex marriages as mind-bending as multipartner marriages, which despite having strong roots in “cultures around the world” (how about a peek at Mormons in the backyard) could never have been intended to be recognised in the US.

Conservative originalists frown upon reference to constitutional judgements of foreign societies – irrelevant to the original authors. Justice Antonin Scalia says he reads Israeli judgements when he wants to shock himself and does not have much to learn from British judges. Ironically, and thankfully, Indian judges allow for osmosis from foreign societies regardless of whether they are “liberal” and “conservative”.The judgement refusing to decriminalise consensual adult homosexuality, and the one recognising rights of the “third gender”, extensively borrow from judgements in foreign societies under foreign constitutions.

The dogma of originalism is just a shade away from dogmatic approach of religious fanatics – say, the Taliban’s interpretation of the Holy Quran. Both have the strong belief that every aspect of human life was originally envisaged and reduced to writing, to be interpreted in the spirit they alone understand. Only a shade different, because originalists always argue that if societies indeed want change, they should elect law-makers to amend the constitution. For the Taliban (or for that matter the orthodox segments of any religious faith), the thought of amending The Book would be a bigger heresy than interpreting it “liberally”.

Amending the constitution in any political system is something that, by design, should necessarily be very difficult. In the words of BR Ambedkar (defending critique that his draft made amending the Indian Constitution very difficult), authors of the constitution had no axe to grind beyond securing a good and workable constitution. On the other hand, parliament necessarily comprises partisans whose agenda would be obstructed and limited by the constitution.Their agenda would be to demolish these hurdles and so should not be allowed to amend the constitution easily.

Yet, he believed India’s constitution-amending limitations were the “simplest” compared with other constitutions such as those of the US and Australia. He was prescient, because we have one of the most-amended constitutions in the world. And our Supreme Court had to adopt a non-originalist interpretation of the law on amendment to outlaw amendments that alter the original basic features of the constitution.That’s something to chew on.

(This piece was published in the July 3, 2015 editions of Mumbai Mirror, Bangalore Mirror, Ahmedabad Mirror and Pune Mirror)

Tweets @SomasekharS

WHAT TO LEARN AND UNLEARN FROM THE UNITED STATES

Prior public consultations when making regulations should be a critical feature

When this column is printed, Barack Obama, as the Guest of Honour would be sitting through a long ceremonial parade to commemorate the completion of 65 years by the Republic of India, born after shaking off a long colonial rule by the UK. Obama would later speak on Mann ki baat,a radio show hosted by Prime Minister Narendra Modi, somewhat like Alo Presidente, hosted by the not-so-friendly Hugo Chavez in Venezuala. But, that bit is a digression.

The is an amazing republic, born of the will of a people, similarly shaking off her colonial masters. Her head of state is a perfect guest to have when celebrating the commencement of the 66th year of the Republic of India. The USA has always fascinated India – after all she has colonised the thinking and strategic objectives of India’s former coloniser so well that the UK is often referred to as the 51st State of the US. The UK is ill at ease with “foreign judges” (from neighbouring European constitutional courts) criticising her laws but is at peace with aligning her laws with collaborative objectives of the US.

New York City is the financial capital of the world, not just of the US. Some say the 51st state should in fact be New York City, and that the UK should only come in only as the 52nd. The City of London is after all over-shadowed by New York City. Therefore, there is always an extraordinary awe in which India and her policy-makers hold the US’ policy (of course this awe extends even to other aspects of public policy, but for this column, one should restrict analysis to the financial sector).

The US, on the other hand, being a sharp student, studies India well for her inner strengths and core capacities, regardless of whether India’s policymakers themselves recognise these strengths – not for nothing that even the consumer-fleecing Indian private sector healthcare is still cheaper than the highly-regulated and insurance-dependent expensive health care in the USA. In the context of Obama’s visit, it would be worthwhile to ruminate over the elements of the USA’s policy framework that we should embrace and those that we should shun copying.

Regulating how to make regulations is a key feature that needs serious learning from the US model. First, prior public consultations when making regulations should be a critical feature. Currently, this is being done more in the nature of lip service than out of any conviction that this process adds value. Public consultation is adopted when writing an entire body of regulations, but amendments to them are made without consultations. Even the process of consultation is not scientific. It is not unknown to find regulations with one scheme of the law being proposed, and after consultations, an entirely different scheme coming out, without any explanation or discussion on what led to the change – a good example would be the regulations governing alternate investment funds.

Second, assessing and discussing costs and benefits a proposed regulation as a pre-requisite of regulation-making is another feature that needs to be adapted. Surely, no regulator would propose any regulation without being motivated by a belief that it would provide benefits. However, not much thought is given to the costs and adverse impact that the regulation might inflict. Any attempt to highlight the adverse impact, depending on the level of anger, can be termed as anything ranging from being aligned with the ‘bad guys’ to being habitually contrarian and maverick. Often, regulations are written merely because a regulator has the power to write them – Reserve Bank of India Governor Raghuram Rajan is spot on when he says organisations create work for themselves once they are created.

Third, making appeals against regulatory orders prohibitively expensive, forcing parties to seek a better bargain in reaching settlements, is a bad model to emulate from the US. Truly, regulators in the US have had it too easy on this front. Once picked up for adverse regulatory attention, launching a defence is so prohibitively expensive that most succumb to settlements rather than fight for honour. There is no lack of honour in settling in that society. In India, the worst of both worlds apply. Adverse regulatory attention makes you a social pariah even while the process of settlement is highly discretionary (regulations governing settlements are inherently conflicting on what can be settled, leading to arbitrary and unreasonable discretion).

Fourth, Indian regulators are empowered a lot more than their US counterparts – the securities market regulator is a prime example. “Empower us unconditionally, and trust us to use it well,” is the Indian regulatory prayer to Parliament, which has often led to enormous powers being granted. In fact, when the power is extraordinary without an appropriate check and balance, regulators lose the incentive to build investigative and enforcement capacity – they can achieve “success” without turning too many stones. The result is an unpredictable regulatory system where the capacity to deal with surprises arising out of regulatory discretion is a skill that carries a precious premium over the capacity to plan one’s business with predictability without the need to “know the regulatory mind”.

Finally, blindly following the US micro-regulatory approach in some areas (for example, one can find regulations on the number and colour of crayons in a box) to the complete light-touch approach in other areas (approach in the financial sector before the last decade’s crises) would be most counter-productive. The US needs to loosen the former, and tighten up the latter. India needs to tighten the former and loosen the latter. After all Modi wants businesses to ‘Make in India’. For many businesses in the world, ‘Make in the US’ is not a welcome thought at all.


The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.

(This piece was published in the January 26, 2015 edition of Business Standard)

THREE APPROACHES TO BUDGET-MAKING

The law governing manufacturing is replete with obsolescence on multiple counts

It is that time of the year when everyone has a view on what the government should do with the Union Budget. As the Budget preparation team locks itself into the cellars of North Block, there are three choices before the (new) government.

The first is to get defensive and tentative in dread that the recent Delhi elections represent a rejection of brave policy. The second is to get bold and decisive, in line with the majority mandate won in last year’s national elections. The third is to lose the plot and deliver a Budget that is disconnected with ground reality.

The first approach would be most tempting and easy to achieve. Examples of this approach would be tweaking a tax rate here and there; moving an item from one classification to another for indirect taxes; and playing around with some tax deductions. There could even be some intuition-based social reform that is not linked to either empirical data or study of behavioural science.

An example would be exempting long term capital gains on transactions in constituents of a popular stock index for a year – essentially, a half-hearted and ham-handed attempt to boost transactions in the stock market.

If this was the only approach, it would spell disaster. Indeed, there would be elements of this approach in the budget speech, but the key is to not do just this. Hence the need to focus on what can be done with the second option. The second approach would be tougher to conceive than to achieve. The national electorate did not vote this government into office with expectations of doing what the UPA would have done anyway.

The expectations created to win the elections deserve incisive interventions. There are structural changes crying to be made. A classic example of skewed policy is that it is far tougher in India to acquire shares of minority shareholders to delist a listed company, than to acquire the land of a farmer whose family depends on subsistence farming, to build a shaving cream factory on it.

Essentially, the second approach would need hard and radical thinking with empirical support – for example, considering abolition of short term capital gains tax altogether on securities would represent such an approach. While predecessors have claimed credit for bringing in new laws, I have decided to remove laws, said Prime Minister at various forums. Focusing the approach of removing laws on obsolete laws that do not affect anyone’s life in any case would be a waste of time.

What is needed is a conscious effort to identify laws that do not serve any purpose and yet have to be complied with – just because the laws have always been there. Take the case of the law that enabled nationalisation of banks, or even the Banking Regulation Act, which deals with banks not owned by government.

The provisions were conceived in an era that bears no resemblance to current-day banking. Be it the structure of the board of directors of banks, or the provisions on what form of expertise should be represented on them, the provisions have no relevance for how banking is run today.

That is just one example. In an era where India is seeking to invite investors from around the globe to ‘Make in India’, the law governing is replete with obsolescence on multiple counts. The enormous clamour for “labour law reform” is obsessed with making it possible to sack workers at will.

The inability to sack employees is itself a product of badly designed law that focused on making it difficult to dismiss employees and lost sight of the need to spend on safety of employees who the employer does not desire to sack. The third approach is one of living in an ivory tower without any clue of what is necessary and what is being expected.

If expectations on the ground are not being heard, this approach gets adopted quite easily. This approach spells unmitigated disaster – where everything can go wrong. The retrospective tax amendments introduced to undo a loss in the Supreme Court on tax interpretation, just because the government was smarting from a loss of what it sincerely believed was a good case, would fall in this category. Given the expectations built in getting this mandate, if one more budget exercise goes by without a policy intervention to undo the messy retrospective amendments, the faith would be lost.

Finally, the government should disregard all the feedback it hears on the front pages of newspapers – no industrialist or commentator from the business sector would give a marking of anything less than 7/10. It, then, becomes a case of the Emperor’s clothes.


(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.)

(This piece was published in the February 16, 2015 edition of Business Standard)

Tweets @SomasekharS

HOW CONSTITUTIONAL ARE SEBI’S DIRECTIONS?

SC’s rationale on validity of IT Act holds immense significance for the financial sector

The Supreme Court’s decision on a challenge to the has made news for the section it outlawed — Section 66-A of that law. However, the court’s decision refusing to outlaw another provision of the law, and the rationale for that decision, carries immense significance and conveys serious lessons for the financial sector.

In the constitutional challenge to the law, Section 66-A was outlawed for being vague, over-reaching and arbitrary.  However, Section 69-A (which empowers the central government  to issue directions to block public access to electronic content) was saved as being constitutionally valid, on the ground that there were effective procedures and safeguards that could protect against abuse. Directions to block public access to electronic content under Section 69-A can be issued only on specific grounds, and Parliament also required the government to make rules to govern the procedures and safeguards for use of such power.

This is the section under which your access to viewing a documentary such as India’s Daughter can be blocked. Now before you jump to the conclusion that the decision to block that film has been upheld, remember that the court has only ruled that the power to block public access does not by itself violate the Indian Constitution. It does not mean that any and every use of that power is constitutionally valid.  In fact, the court found that the safeguards and procedures enable a mechanism to avoid arbitrariness, and even after those are followed, a challenge under a writ petition can be made. Section 69-A explicitly reproduces the very eight grounds on which reasonable restrictions may be imposed on the fundamental rights to various liberties enshrined in Article 19 of the Indian Constitution. Written rules notified by the government specify that a request for blocking any electronic content has to be made to a “nodal officer” who shall apply his mind to whether or not any of the eight grounds are available in the facts of the case. She then puts up the complaint to a “designated officer” who is authorised to issue such an order.  Meanwhile, a committee of government officers is required to examine the complaint, arrive at a view on whether the blocking of access may be considered to be reasonable (i.e. whether any of the eight grounds are available).

The committee is also required to give a hearing to any person who has generated or stored the electronic content sought to be blocked so that the arguments against a potential decision to block access can be heard. The case is then placed before the secretary, Ministry of Information and Broadcasting, who could then take a view, after which the designated officer may block access to the content complained of. Over and above this framework, a “Review Committee” is required to meet every two months and examine whether such decisions to block access to electronic content should be continued or not.

The took note of the elaborate framework of procedures and safeguards prescribed in law to protect against arbitrary usage of the power to issue directions, and therefore held 69-A to be constitutionally sound.  Now, juxtapose this with a similar “power to issue directions” granted to the Securities and Exchange Board of India under sections 11(4) and 11B of the Securities and Exchange Board of India, 1992.

First, the sections themselves (unlike 69-A) make no reference to the safeguards set out in the Indian Constitution.  They empower the regulator to issue directions “in the interests of” investors in the securities market – a term that can be understood in as wide a range as a painting of Mother India by M F Husain.

Using this power, any person associated with the securities market can be put out of the securities market until further notice without even a hearing. This measure can simply mean, in practical terms, that one cannot access one’s own savings invested in financial assets so long as such assets are “securities” — practically, almost everything other than what is in one’s bank account.

Second, unlike 69-A, there is no prescribed procedure at all for how the regulator should consider or  reconsider whether directions under Sections 11 and 11B are warranted or justifiable. The need for a post-decisional hearing is often presented as a safeguard. In reality, in the absence of any prescribed procedure or timelines, there can be absolutely no expectation of when such a post-decisional hearing would be afforded.

It can range from a few weeks to several months.  Instances of people being put out of the market on suspicion first, with investigations following later and dragging on for years, are par for the course.

In the 20-year history of this power, neither has a single rule been made by government nor has any regulation been made by on its own, to govern the usage of this all-important power similar to those in anti-terrorism laws.

Third, there is no review at all of whether a direction issued is required to be continued even when months and years go by. There is no review committee, no independent mind, or any other such safeguard to review whether or not a direction issued should be continued.  Over the years, the norm  has degenerated to the regulator almost never lifting a direction once issued.

Worse, the evidence shows that more and more strident tones are adopted regardless of content, in the delivery of the message continuing the directions.  These tones prejudice “collective conscience”, which in turn, influences judges.  So much so, that when directions are lifted by Sebi of its own accord, corruption is assumed. Provisions similar to sections 11(4) and 11B are contained in every legislation governing the financial sector — first found in the Banking Regulation Act and replicated in every legislation including recent ones such as those governing the insurance and pension regulators.

The Sebi is the regulator that has used it the most. None of these legislation has safeguards akin to those in 69-A. In the collective conscience of our society, the constitutional rights of those in business, have always been perceived as less worthy, perhaps due to the sub-conscious belief that these are the folks who otherwise subvert the law.

The European Court of Human Rights has recently seriously interdicted such powers of the Italian securities regulator. Until India brings order in this space, doing business in India will remain very difficult.


(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.)  

(This piece was published in the March 30, 2015 edition of Business Standard)

Tweets @SomasekharS 

WAKE UP CALL FOR JUSTICE DELIVERY

Based on data computed as of June last year, India ranks ahead of only of Timor-Leste, Bangladesh and Angola

Yet another Doing Business survey from the World Bank Group presents yet again a telling story of the state of affairs with the process of contract enforcement in India. The Doing Business 2015 survey places India fourth from the bottom (rank 186 out of 189 countries) in ease of enforcing contracts. The study of ease of enforcing a violated contract is an assessment of how efficiently the judicial system functions after a commercial sale of goods goes wrong.

The study tracks the time, cost and number of procedures involved from the initiation of a suit until payment is actually received. The methodology involves computation of the number of steps required, and the time required, to file and serve the suit, the steps involved in trial and judgment and in enforcement of the judgment rendered. The costs for these procedures in terms of costs of lawyers, costs of the court and costs of enforcement are also studied and compared.

Based on data computed as of June last year, India ranks ahead of only of Timor-Leste, Bangladesh and Angola – in that order. That ranking is a result of the study being made across 17 Indian cities ranging from large ones such as the four metro cities to smaller ones such as Guwahati and Indore. Within India, Hyderabad ranks the first with a timing of 770 days (about two years), costs of 17.8 per cent of the disputed claim, with 46 procedural steps. The commercial capital Mumbai ranks the worst, with the study projecting that it would take 1,420 days (about four years) to enforce a contract, with 39.6 per cent costs, with the same number of procedural steps.

The assumption in this study is that the loser of the dispute does not challenge the judgement and that enforcement of the judgment begins right after the time limit for an appeal expires. In reality, this is hardly the case. Worse, even against interim orders and process decisions, appeals go up routinely and get entertained without infliction of costs on parties that waste court time.

Appeal courts intervene, or take time to determine that they should not intervene, which adds to the burden. Appeals also go up all the way to the Supreme Court, which routinely acts as the last court of justice rather than as the last court of law – the overriding objective of rendering justice often results in cases being almost re-heard in the apex court. The net result is that the sad picture of ranking 186 out of 189 countries is based on data assumptions that in fact make this grim picture not reflect even worse reality.

India has a fiercely independent judiciary – clearly the Republic’s strength. However, the administration of the conduct of day-to-day business of the judiciary has hardly kept up with times.

Attempts to “digitise” filings have been ineffective due to absence of common standards across the food chain of litigation from the lowest court to the highest court. A lot of digitisation projects have resulted in physical documents being scanned into images (the documents’ contents thereby being incapable of being electronically searched and processed).

Every court has its own systems and processes. High Courts have their own rules over and above the general law on procedure.

Within a court, different judges adopt different processes on how to handle their work. Some allow cases to be “mentioned” for out-of-turn consideration on grounds of urgency while others lay down norms that would make counsel shudder to attempt an out-of-turn engagement. Not all of these approaches are reduced to writing, necessitating physical checking with court staff on how the judge would approach matters. On any given day, hundreds of cases are listed. At times, the “mentioned” matters upstage the cause list for a few hours. Most matters on the cause list are merely posted to another day, on which day, a similar routine would ensue.

It is time for surgical intervention – a lot of which can inflict short-term pain. The business processes of justice administration ought to be handled by an autonomous, professional and independent body corporate that develops uniform systems and processes across the country.

There is no reason for a dispute in Hyderabad to be handled differently from a dispute in Mumbai. Three critical administrative elements – real estate, non-judicial human resources and information technology – are areas that judges should not have to waste time with. They are standard resource requirements across all courts.

The professional corporate could be “demutualised” and owned by a consortium of governments. A chief executive officer overseen by a board of directors independent of shareholders, with representation from the judiciary and the ministries of finance and law, could run the show. Other jurisdictions have such organisations in place. Her Majesty’s Courts and Tribunals Service, an executive agency sponsored by the Ministry of Justice in the United Kingdom is a classic example.

Even while India struggles to get her act together, disputes involving Indian law are being resolved outside India by retired Indian judges acting as arbitrators, hearing arguments from Indian lawyers.

The only loser is the Indian justice delivery system. Judicial systems across the globe are competing for market share offering effective and timely resolution. Such arbitrage coupled with speedy tribal justice from khap panchayats, could render the official local justice delivery system practically redundant. Time to heed the wake up call.


(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.somasekhar@jsalaw.com)

(This piece was published in the April 27, 2015 edition of Business Standard)

Twitter: @SomasekharS

OUTSIDERS CANNOT BE INSIDERS

Insider trading regulations are all about prohibiting someone with asymmetrical access to inside information

The new insider trading regulations notified by the Securities and Exchange Board of India (Sebi) took effect last weekend. While the regulations are largely based on draft regulations made by the N K Sodhi Committee, they do deviate on some material issues. (Disclosure: the author was a part of the Sodhi Committee and any critique should be taken with a pinch of salt.) This column will not dwell on the deviations in what is covered by the regulations but would pick up one element of something that has been left out.

One of the recommendations in the draft regulations was to treat “any person who is a public servant or occupies a statutory position that allows such person access” to unpublished price sensitive information of companies (colloquially, “inside information”), as a “connected person”. This was an explicit definition that would have brought this category of persons within the ambit of “insiders”. This element has been dropped. It is argued by some that such language is unnecessary because the definition of the term “insider” covers apart from “connected persons”, any person who has access to inside information. Clearly, that would not be a complete answer.

Insider trading regulations are all about prohibiting someone with asymmetrical access to inside information of an issuer of securities from monetising the access ahead of the rest of the market. The access to the workings of the business and the financial position of the issuer would enable access to information that could impact price discovery of such securities but is not generally available. Therefore, it necessarily has to emanate from inside the issuer, which it is even necessary to define a connection as one to the insides of an issuer. For example, a chief financial officer of a company that is listed on the stock market is clearly privy to the draft financial statements way before the information becomes generally available.

On the other hand, take a judge who is writing a judgement on a material tax dispute. All the information presented to him is generally available – anyone sitting in the court room would see exactly what is being argued before him. Now, his decision on which way to rule in the dispute is price-sensitive information, will impact the price of securities of the company involved in the dispute, but would be known only to him because it is he who would take the decision and until he makes the decision public, no one would know which way the fortunes of the price of those securities is headed. The staff in his office, his fellow judges who may get wind of which way his decision is headed, and his relatives who may discern his views from his views on the dining table, would all be “outsiders” and not “insiders”. The information relating to the final decision in the judgment would emerge from outside the company and not from inside.

Such persons would be connected to the outsider judge and not to those inside the company who would be eagerly awaiting the outcome themselves. If they were to trade ahead of the market, there would be no legal basis for treating such “outsiders” to listed companies as “insiders”. Unless, of course, there is an explicit definitional coverage of such a person as a “connected person”, which is precisely what has been deleted. Replace the judge with a bureaucrat who determines government policy that can have an impact on price discovery for securities in the market, and the picture remains the same. Replace the bureaucrat with a lawmaker in Parliament who gets to decide on policy and the effect would be the same. Indeed one could argue that an income-tax official who gets to see advance tax data filed by various listed companies or an investigator, who conducts a search and seizure into a listed company and gets access to inside information, would be covered as a recipient of information from an insider. The information they would get, would not be information that they generate but information generated from the insides of the company they are assessing or raiding. Trades by them when being privy to such information could indeed be covered by the regulations since they were recipients of information from insiders.

Given the stakes involved – of whom the law would protect against rather than who would be protected – this is not an easy piece of reform to implement. Every piece of law protects someone from someone else. It is not surprising that this piece of reform did not come through.


(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.)
(This piece was published in the May 18, 2015 edition of Business Standard)

CRITICISM WITH GAY ABANDON

By Somasekhar Sundaresan

The recent ruling on same-sex marriage in the US shows that Supreme Courts are necessarily always right because they are final. They are not final because they are always right. There is no other way to oversee a society’s evolution.

Never before has the role of a Supreme Court come under such scathing attack in any country – from within and without. The United States, a society rooted in deep-seated traditional Christian morality woke up towards the end of last week to find that its Supreme Court had ruled that samesex marriage deserved equality of the law across the country (not all states in the US recognised such marriages). The court also ruled that refusal by any state to recognise same-sex marriages lawfully performed and recognised in another state constituted a deprivation of life and liberty.

The ruling was a sharply divisive one: five “liberal” judges for, and four “conservative” judges against. Unlike India, where there are arguably many supreme courts, with multiple benches comprising two or three judges to hear appeals, in the US Supreme Court, all nine judges hear all appeals jointly and have a say in every case. Each of the four dissenting judges wrote their own dissents. Two judges – Justices Antonin Scalia and Clarence Thomas not only wrote their own dissents but also signed up on every other dissenting judgement.

Justice Anthony Kennedy who wrote the majority decision had also authored the earlier US Supreme Court decision holding that laws banning homosexual intimacy between consenting adults would be unconstitutional. Clearly he and his majority colleagues are giving meaning to the adage about constitutions being living documents, reinventing and evolving their coverage with the changes and evolution of society.

The dissenting judges are biting in their critique of the majority. One has argued that treating the right to marry a person of one’s choice is not a fundamental right. Another has said it is never the state’s obligation to provide dignity. One dissenter has argued that such a decision should rest with the people who may elect representatives to pass laws to this effect. In the same breach another judge has gone into how the judges of the Supreme Court who went to Ivy League colleges and come from the elitist eastern and western coasts of the US are not representative of the aam aadmi’s thinking on the subject.

The peeved minority took the battle straight into the majority camp, arguing that recognition of gay marriages is only a step towards eventual recognition of the right to marry more than one spouse. “Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” argues Chief Justice John G Roberts. “Indeed, from the standpoint of history and tradition, a leap from opposite sex marriage to same sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world…It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”

Governor of Louisiana Bobby Jindal, who is hoping to become US President, struck the most strident note. “Marriage between a man and a woman was established by God, and no earthly court can alter that,” he thundered. “The Supreme Court is completely out of control….and has become a public opinion poll instead of a judicial body…If we want to save money, let’s just get rid of the court.”

Supreme Courts administering constitutions often face such critique. When a ruling resonates with a section of society, that segment would applaud. Sections that find the same ruling jarring would allege judicial overreach. The same critic who says the court seeks popularity could argue that the court is not representative of the populace.

Supreme Courts are necessarily always right because they are final. They are not final because they are always right. There is no other way to oversee a society’s evolution. The politicians who look to God and not “earthly courts” should learn from the Vatican’s elected incumbent. Pope Francis not only asked “Who am I to judge” but also recently welcomed and met a delegation of homosexual Catholics. Little wonder the right-wing Christian politicians in the US are facing an existential crisis.

Tweets @somasekhars

(This piece was published in the July 3, 2015 editions of Mumbai Mirror, Bangalore Mirror, Ahmedabad Mirror and Pune Mirror)