Above: Photo by Anil Shakya

The demise of Professor NR Madhava Menon on May 8 has deeply saddened all who knew him personally or through his work as a writer, mentor and legal scholar. His friend and colleague fondly recalls his popularity, prowess and organisational skills

By Prof Upendra Baxi

Little did I know that Madhava Menon having very recently initiated a dialogue with me on constitutional morality in India Legal (January 21, 2019) would no longer be able to respond to me (“Constitutional Morality: ‘No Entry’ in Adjudication?”, India Legal, April 5, 2019).

Madhava thought adjudicative sup­remacy was entailed in the newly fangled-conception of constitutional morality and that it was a dangerous supplement to the doctrine of basic structure which already expanded judicial review prowess. In contradiction, I insisted that it was a concept, coeval with the Const­itution, and did not endanger legislative powers, save rarely when basic fundamental rights were in dire conflict.

I was hoping to discuss the matter further with him on April 13-14 at a national seminar on legal education and research reforms (convened by Prof­essor Jeet S Mann of National Law University, Delhi). We heard that he was not well and conveyed our best wishes to him, but no one imagined the end of such an illustrious career so soon thereafter.

Legal education in India has suffered a big blow in the sad demise of Prof Madhava Menon. We all have a finite and contingent life in this world, but the fact that many of us find the news so abysmally shocking shows how popular he was. Already, tributes are pouring in—identifying his devotion to professional and clinical legal education, his work in establishing so many national law schools and recalling his impassioned care and concern about legal aid and services. Fali Nariman and Faizan Mustafa have applauded richly (The Indian Express, May 9) Madhava Menon’s many-sided contributions.

Some have hailed him as “the father of modern legal education”, and while I know he would have been pleased to be so described, he would have himself caveated this description. He would have recalled the first generation pioneers of modern legal education and research (like Professors RU Singh, GS Sharma, Anandjee, AT Markose, MP Jain,   Ajjappa, PK Tripathi, Shiv Dayal, Paras Diwan), and second generation figures (like Professors SK Agarwala, SP Sathe, Phiroze Irani, DN Saraf, RK Misra, IC Saxena, TS Rama Rao, BS Murthy, SN Jain, Mohammad Ghouse and others).

Menon would have liked to be re­called, though, as a founder of a new wave in legal education—namely, the National Law Schools, starting with the prototype at Bangalore. He made his mission to establish National Law Schools elsewhere and now the result is that every state has one, while Maha­rashtra has pioneered three. His views, like most founders, may be summated in the words of Louis XV: après moi le deluge (after me the deluge!) But Madhava had also the good grace to appreciate how some of his successors did struggle to achieve excellence in legal education under difficult circumstances.

Madhava knew the art of the possible and was a tall voice for legal education on the national scene. Successive governments at the Union and states relied on him for expert advice and he rarely disappointed them. He was a champion for reforms in the administration of justice, and did a mighty lot in terms of judicial education as the first academic director of the National Judicial Aca­demy at Bhopal.

I had the privilege of knowing him as a colleague in Delhi Law Faculty and we each had a room on the second floor. He was an enormously popular teacher and a Head, for some time, of the Campus Law Centre. Apart from being a talented scholar of criminal law, he accomplished many organisational tasks with aplomb. And it was only when I pressed him, as a friend, to more rigorously pursue research interests, I gradually realised that his many talents belonged elsewhere—to wider and much neglected tasks of institution-building.

I was glad to facilitate his induction into the Bar Council of India Journal (called later the Indian Bar Review). He arranged several refresher programmes for senior Bar members with the auspices of the Bar Council of India Trust. I still recall the star-studded first programme attended by Fali Nariman, Soli Sorabjee, Parmeshwar Rao, Raja Reddy, Justice AP Chaudhry, Rani Jethmalani and others at Bhubaneshwar. The event was run with the firmness of schedule and there we all realised and relished the disciplinarian Madhava. Some of us later wondered how he got along so well with a rather anarchic and chaotic Justice Krishna Iyer; their easy friendship remains still a mystery for many of us. They worked together on many causes, legal aid and Lok Adalats.

Madhava had no difficulty in illustriously leading the National Law School University, Bangalore. This was after my being for a decade the Honorary Dir­ec­tor-Designate of the School, which had to be given up when the Bar Council failed to pursue my recommendation that at least half the State Bar Councils raise 12 endowment chairs for bearing names of eminent lawyers and jurists.

But Ram Jethmalani (the Chair of BCI), GR Yethirajulu Naidu (the Advocate General of Karnataka), Raja Reddy (the managing trustee of the Bar Council Trust), MN Mathur (later a justice of the Rajasthan High Court, and Vice-Chancellor of Jodhpur National Law University) worked together with Professors GS Sharma (who first floated the idea of a National Law School in Jaipur Law Review), SK Agarwala, RK Misra and me and organised the University Ordinance and later the Act, admissions test, curriculum, land and other infrastructure. That was an exciting period and Madhava was present at the foundation stone laying ceremony by Vice President M Hidayatullah and Chief Justice Yashwant Chandrachud and he addressed a session releasing the Silver Jubilee issue of the Journal of Bar Council of India.

The history of Indian National Law Schools will be written later but whenever that is done, the name of Professor Madhava Menon will be inscribed in golden letters.

Adieu, and Ayyappa Saranam, my good friend!

—The author is an internationally renowned law scholar,
an acclaimed teacher and a well-known writer

A Man of Immense Wisdom

Prof NR Madhava Menon was a distinguished educator in the field of legal education. He set the path for a holistic five-year law course that revolutionised the way this subject is taught in India. Prof Menon headed and taught at numerous universities and earned the sobriquet of “Father of Modern Legal Education in India”. For his sterling contribution, he was conferred the Padma Shri in 2003. India Legal was fortunate to have him as one of its regular columnists. He wrote extensively for the magazine, sharing his insights on a wide range of legal issues having seminal importance. Here are some excerpts: 

• On the January 12, 2018 press conference called by four seniormost judges of the Supreme Court and the subsequent impeachment motion against then Chief Justice of India Dipak Misra, Prof Menon wrote (May 7, 2018 issue):

“I would characterise the January 12 press conference by some judges of the Supreme Court and the consequent assault on the judiciary from several quarters as “a self-inflicted wound”. The ill-conceived impeachment motion by Opposition parties, knowing full well its futility, can be termed “an unnecessary political gambit”. The Republic and We, the People of India, are the losers in the game which some judges and a section of politicians played to settle personal scores, advance partisan agendas or whatever else….Asking for judicial re­form needs to be welcomed, but condemning the system as a threat to dem­ocracy and imputing mala fide intentions to the head of the judiciary in a press conference cannot be acceptable. Though the justices said later that imp­eachment is not a solution to the problem, they unwittingly invited the Opp­osition parties to initiate action against their senior colleague, the chief justice of India….Whatever course this matter takes in future, the damage is done and it will take a long time and great effort on the part of judges, particularly of constitutional courts, to redeem public trust and confidence in the impartiality and independence of judges…”

• When a senior member of the Bar and BJP spokesperson reportedly requested the prime minister to take immediate steps to raise the retirement age of judges at all levels to 70 years, Prof Menon said (July 23, 2018 issue):

“…What is the logic for seeking an increase in the retirement age? The reasons are many and varied, of which pendency is just one and not necessarily the predominant one. Non-availability of professionally competent hands in adequate numbers even to fill the existing vacancies is one of the principal reasons for the demand. When High Courts conduct examinations for selection of judges to the subordinate judiciary, incl­uding for posts of district judges, hundreds appear, but very few qualify. Year after year, the experience of several High Courts had been dismal in the sense that not even half of the vacancies could be filled up because of lack of suitable candidates. The status of reserved seats in the judiciary is even worse. Given the income level of successful practitioners (advocates), many of them would not care to take up offers for positions in the judiciary. Compromising merit to fill up vacancies is inviting trouble in later stages, bringing a bad name to the judiciary and dissatisfaction to the litigant public. Hence, there is a need to retain competent and experienced judges to serve the system as long as they are fit and willing. This is the reason for several countries to adopt the system of appointment for life….

“Revision of age, however, is not a simple and innocuous exercise if the main intention is to increase efficiency in the system. Admittedly, there is a lot of dead wood in the judiciary and it will be an unjustified burden on litigants and the public exchequer if incompetence and inefficiency are allowed to be carried on for longer periods. In other words, extension of the retirement age of judges should be conditional upon efficiency in handling judicial work at the appropriate levels…”

• As a way to improve the judicial performance standards, Prof Menon proposed the introduction of an All-India Judicial Service and wrote (January 21, 2019 issue):

“…A judicial system consists of three elements—laws, institutions and the personnel involved. Laws and institutions are not self-executing and it is the personnel who make the system deliver. The inadequacies of laws and institutions, to a large extent, can be overcome if the personnel who man the institutions are competent and motivated professionals. If judicial reforms are looked at from the above perspective, there can be no doubt that the single-most important step to put the system on the right track is to induct meritorious people in adequate numbers to preside over courts and tribunals. The National Judicial Appointment Commission for the higher judiciary and the All-India Judicial Service (AIJS) for the subordinate judiciary are, therefore, the twin strategies to get the system to deliver both on quality and quantity….

“AIJS has become essential because the existing system under which High Courts or State Public Service Com­missions are recruiting judges to the district judiciary is so full of loopholes, delays and inefficiency that it is unable to produce enough qualified candidates to fill the vacancies. In some cases, even those limited selections are challenged in unending litigation, denying judiciary the services of meritorious candidates. It is sad that while other public services get relatively better candidates, the judicial services even at the district level are left to manage with less meritorious candidates or with none after prolonged selection procedures and substantial expenses. This is not be­cause the judiciary is not an attractive service to the talented, but because of frustrating procedures and inefficient management practices. AIJS selection by a central agency under judicial supervision will make the difference that the system is waiting for….”

• After reading Professor Upendra Baxi’s comment on Attorney General KK Venugopal’s concern over Cons­ti­tutional Morality being used by the Supreme Court as yet another weapon to strike down laws (Dec­ember 24, 2018 issue), Prof Menon responded by raising eight fundamental questions (January 21, 2019 issue). They are:

1. “As an overarching principle of constitutional governance, is not the concept of Constitutional Morality and whatever it means applicable to all three wings of the State and the citizenry? If so, when the legislature, which represents “WE, THE PEOPLE”, makes a law, is it not fair to say that such a law can be presumed to incorporate Constitutional Morality? Should the Court in such circumstances be obliged to seek strict scrutiny and positive evidence to strike it down through judicial review?
2. Is there any justifiable fear in the public mind that too much power is getting concentrated in the judicial wing without proper checks to prevent judicial excesses and that works to the detriment of not only Constitutional Morality and Rule of Law, but to the basic structure of democracy itself?
3. Given the fact that there is no single Supreme Court to decide on constitutional questions and there are multiple courts, depending on the constitution of benches, and also given the fact that often important constitutional questions are decided by benches with a one- or two-vote majority and further, given the general impression that the rule of collegiality is very often missing among judges, how does the power dynamics of the bench impact on constitutional governance and rule of law?
4. Is the Court free to invoke Consti­tutional Morality to decide against the text of the Constitution as in the case relating to appointment of judges to the higher judiciary?
5. When Constitutional Morality is in­voked by judges of the same bench to come to opposite conclusions as during the Sabarimala judgment, what is the message it gives for constitutional governance and rule of law?
6. Is the Court the custodian of people’s faith and belief as well? Can it possibly interdict on customs and practices traditionally followed by religious denominations on grounds other than what are provided for in Article 26? Are there judicially manageable standards to evaluate every religious practice in every religion? Is not complementarity of constitutional institutions also part of Consti­tutional Morality?
7. What happens when two Fundamen­tal Rights, one guaranteed to individuals and the other to groups of people, contradict each other? If right to privacy is interpreted to mean the prevention of the State taking necessary steps to en­sure security, what will happen to right to life and right to freedom of individuals? Who is best to judge the right balance between liberty and security in the era of terrorism and digital transaction?
8. Could Dr BR Ambedkar be wrong when he said that Constitutional Mor­ality is a “sentiment” which has to be cultivated among the people as it is not natural to them? Can the attorney general be faulted when he said that as far as Dr Ambedkar’s invocation of the doctrine is concerned, it was more a mandate to the people and their representatives, rather an additional source of power for the Court?”

• When Justice AK Sikri said, upon his retirement as a judge of the Supreme Court, that fair decision-making req­ui­res “an element of femininity” in judges, Prof Menon wrote (April 1, 2019 issue):

“…The question that arises is that if “a feminine approach to justice” is essential for fair decision-making, what is being done to prepare judges for the job. Justice Sikri said that judges with the passage of time acquire that sense of justice. Is it enough to leave it for judges to acquire it through experience over a period of time? Are there techniques to assess the extent of “feminine approaches” in judges at the time of their appointments? How far can judicial education and training at the induction stage or thereafter instil such feminine qualities in those who do not possess them? Can legal education provide the foundation for cultivating feminine approaches in analysing and appreciating legal provisions and judgments so that lawyers are at least conscious of the “feminine approaches deficit” in their pleadings, arguments and conduct of court proceedings?…”

 

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• When Should Judges Retire?
• Continuing Education for Lawyers Crucial: Prof. NR Madhava Menon