Sunday, March 29, 2015

Citing American Authorities in Free Speech Cases

The Supreme Court’s judgment in the section 66-A case was striking to me for one particular reason. Indian courts have long held that the judgments of American courts can’t reliably be used as precedents while deciding cases involving the right to free speech, because the right to speech is textually absolute in the U.S. whereas it is circumscribed by numerous "reasonable restrictions" in India [see, e.g., Reliance Petrochemicals v. Indian Express, AIR 1989 SC 190]. This, of course, is not entirely correct [see further: here]. American courts have recognized that there are exceptions to free speech – child pornography, defamation, and perjury being prime examples.

The myth of the “absolute” right to free speech in the U.S. has now been busted by Justice Rohinton Nariman of the Supreme Court of India who, I believe, is the first Harvard LL.M. on India’s Supreme Court bench. Nariman J. has held:

“14. It is at this point that a word needs to be  said  about  the  use  of American judgments in the context of Article 19(1)(a).  In  virtually  every significant judgment of this Court, reference has  been  made  to  judgments from across the Atlantic.  Is it safe to do so?

15. It is significant to notice  first  the  differences  between  the  US First Amendment and Article 19(1)(a) read with  Article  19(2).   The  first important difference is the absoluteness  of  the  U.S.  first  Amendment  - Congress shall make no law which abridges the freedom  of  speech…. Insofar as the  first  apparent  difference  is  concerned,  the  U.S. Supreme Court has  never  given  literal  effect  to  the  declaration  that Congress shall make no law abridging the freedom of  speech.   The  approach of the Court which is succinctly stated in one of  the  early  U.S.  Supreme Court Judgments, continues even today....
...
18.   Viewed from the  above  perspective,  American  judgments  have  great persuasive value on the content of freedom of speech and expression and  the tests laid down for its infringement.  It is only  when  it  comes  to  sub-serving  the  general  public  interest  that  there  is  the  world  of   a difference...”


Thus, after concluding that it’s safe to rely on American authorities in free speech cases, the Supreme Court of India has extensively cited and relied on American cases in its judgment.

Thursday, March 26, 2015

'Democracy's narrow escape'

The Supreme Court's judgment in Shreya Singhal case has been widely hailed.  The title of this post is drawn from one such commentary carried in Telegraph, which also exposes the players and the factors that went into the making of S.66A of ITA.  The Court had before it 10 petitions, including that of Shreya.  This site gives an overview of all the petitions. Although the petitions were listed before different Benches since 2012, the present Bench began to hear the case only from January 13 this year, and heard it for eight days, before concluding on February 26.  If the listing of the case before this Bench is explained by chance, then perhaps the title of the post - despite the eclipse of democracy since 2009, when S.66A was inserted into the ITA - is fully justified.  Considering the inordinate delay in hearing the matter by the Supreme Court, democracy's agony could have been longer, but for the current Bench which heard it expeditiously. 

Update:  Telegraph continues its coverage, with a story on what it calls the 'Congress' 66A gene'

Wednesday, March 18, 2015

On Freebies and Election Manifestos

 [Guest Post: Vasujith Ram] 

AAP’s election manifesto made a host of promises: Lakhs of CCTVs for women’s safety [see here], Wi-Fi in all public places, 20, 000 Litres of free water every month, reduction of electricity bills by half, among others. Both before and after the winning mandate for AAP, sections of the media, civil society and political rivals quested the financial feasibility of the poll promises (for example, see here, here and here).

Curiously missing in the debate is the discussion of the newly inserted Part VIII of the Model Code of Conduct (MCC). Part VIII reads:
“(i) The election manifesto shall not contain anything repugnant to the ideals and principles enshrined in the constitution and further that it shall be consistent with the letter and spirit of other provisions of Model Code of Conduct.
(ii) The Directive Principles of state policy enshrined in the constitution enjoin upon the state to frame various welfare measures for the citizens and therefore there can be no objection to the promise of such welfare measures in election manifestos. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise.
(iii) In the interest of transparency, level playing field and credibility of promises, it is expected that manifestos also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.” [emphasis mine]

There is no mention of the financial requirements or the ways and means to meet the promises in the AAP manifesto. In fact, it is the same case with the Congress manifesto and the BJP manifesto (titled “vision document”) as well.
             
Part VIII of the MCC was inserted following the judgment in Subramaniam Balaji v State of Tamil Nadu. The case arose out of a decision of the Madras High Court with respect to distribution of freebies by the political parties. The Supreme Court opined that promises in an election manifesto cannot be characterized as a “corrupt practice” under S. 123 of the Representation of the People Act, and that matters of state policy cannot be entered into by the Courts. It however directed the Election Commission (EC) to frame guidelines to maintain the purity of the election process. The EC, after consultation with various parties released a draft version on 31 January 2014 and a final version of Part VIII on 19 February 2014.
          
In response to my RTI application, the ECI supplied to me (Vide letter No. 4/RTI/2015-CC/444) the minutes of the meeting held on 12 August 2013 (the meeting where the framework for election manifestos were first discussed, in pursuance of the Supreme Court’s judgment) and the responses of the various parties in the meeting. Only 1 out of the 6 national parties and 9 out of the 31 state parties suggested or agreed that some guidelines for election manifestos need to be framed. None of the national parties and only 7 of the state parties suggested or agreed there is a need for a separate framework for ensuring compliance of guidelines. The rest of the parties mostly opined that there should be no intervention. Post the meeting, the ECI framed draft guidelines (the text is similar to the final guidelines adopted) and sent it to the parties for their views. Only four parties – BJP, INC, CPI(M) and SDF responded. Of these, the BJP unequivocally stated that the party is not favour of any guidelines, and the INC objected to Clause 3, where the party is expected to broadly indicate ways of meeting financial requirements. The other two parties stated broadly that they do not have any objections.

In his book “The Undocumented Wonder: The Great Indian Elections”, former Chief Election Commissioner Dr. S. Y. Quraishi states the MCC “is not a creation of any statute, but the result of a consensus among political parties.       “ The above discussion clearly shows that there was no ‘consensus’ among the political parties, at least with respect to Part VIII of the MCC.

A response to my RTI application has revealed that no notice has been issued (as of 2 February 2015) for violation of Part VIII of the Model Code of Conduct (EC: No. 4/RTI/2015-CC&BE/65). Apart from the General Elections to the Lok Sabha in 2014, elections have been conducted for the Assemblies in Maharashtra, Haryana, J &K as well in Delhi post the addition of Part VIII. As one of the Editors of this blog suggested, this non-issuance of notice (and absence of any public objection) is perhaps due to clause (iii) of Part VIII, which merely states, “it is expected that manifestos also reflect…”. It may also be due to the lack of consensus with which this Part was added.

Some clarity is also needed with respect to the nature and scope of Part VIII: Does it extend to promises of leaders on behalf of parties (for example, while AAP’s manifesto merely promised CCTVs in public spaces, Kejriwal in an interview stated that 15 Lakh CCTVs in total would be installed)? Does it extend to documents in the nature of “vision documents” (with no real distinction from a manifesto)? Textually, Part VIII only states that “Political Parties and Candidates while releasing election manifestos… shall adhere to the following guidelines”.
             
This debate can also be placed in the wider deliberation regarding the efficacy of the MCC in its present form. In favour of the authority of the MCC, Dr. Quiraishi in his book argues that the lack of statutory status does not diminish the effectiveness of the MCC, since any EC notice for violation attracts severe condemnation from society. In a different context, Dr. Quraishi also observes that “the Commission has not had to exercise this power [under Para 16A of the Symbols Order] … and the credit … goes to the political parties as a class who have always respected the Code [MCC]” (pp. 253). So far, the experience with Part VIII of the code has shown otherwise. 

Directing that the EC should take up the task of framing guidelines immediately “owing to its utmost importance”, the Supreme Court had also noted that the EC has been “issuing instructions” as per the MCC “to see that that the purity of the election process is not vitiated”. Little has been done so far. Alongside directions to the EC, the Apex Court also recorded the need for a legislation in the field. In response to Unstarred Question no. 2272 in the Rajya Sabha, the then Law Minister Kapil Sibal (on 30.08.2013) stated there is no such proposal pending before the Government. Even the Law Commission in its latest 255th report on electoral reforms makes no observations on this issue.

[Vasujith Ram is a student of the National University of Juridical Sciences, Kolkata]

Monday, March 02, 2015

A fresh attempt to seek notification of an Act passed years ago

Jay Sayta is a final year law student at the National University of Juridical Sciences Kolkata and runs GLaws.in; India's first and only website on gaming laws.
Jay started GLaws.in in 2010 as a resource to monitor developments in the gaming industry. In a short span of four and a half years years, GLaws.in has become a premier resource for everyone associated with the Indian gaming industry.   Jay has also articulated his views on topics like legality of games of skill, benefits of legalising sports betting, need for bringing reforms in sports bodies like BCCI, need to curb the malaise of match-fixing etc.   Here, he answers a few questions on his latest public interest litigation (PIL) petition filed in Bombay High Court seeking the notification Maharashtra Casinos (Control & Tax) Act 1976, which legalised casinos, gaming and wagering. 

Q How is your petition different from the earlier ones filed in the High Courts and in the Supreme Court, all of which, ultimately upheld executive's discretion as to the timing when it would notify an Act or a part of it? What additional grounds, which were not argued earlier, you raise in this petition? 


A. I have filed a petition against the Maharashtra government for not notifying the Maharashtra Casinos (Control & Tax) Act, 1976, a little known legislation which legalises gambling and wagering through licenses in the state of Maharashtra. The Act has been passed by both the Houses of the Legislature and assented by the government; however it has not been notified under Section 1(3) and rules/notifications have not yet been prescribed under this Act.

We have inspected and got copies of the relevant files from the Law Department, Government of Maharashtra. There is nothing on record to show that the government has considered notifying the Act or applied its mind on the issue. In the other cases, there have been some difficulties or practical reasons brought on record.  

Secondly, the Supreme Court decision in Aeltmesh Rein v. Union of India (1998) 4 SCC 54 still operates and as per that decision, Courts can issue directions to the government to consider bringing a legislation or part of it into force. This is the first case where an entire legislation has not been brought into force for 38 years. Surely such a case of gross oversight or non-application of mind of the executive demands judicial intervention. The UK House of Lords has also said in Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) 2 AC 513 (HL) that a situation where the executive never enforces a statute while continuing another legislation can never arise. In this matter, 38 years of executive inaction gives the impression that the government never intends to implement this legislation and the courts should thus intervene.

We are also additionally adding the ground that this is a fraud on the Indian constitution and violation of the doctrine of separation of powers as the executive is taking away legislative functions by keeping the Act in abeyance for such a long period of time. Various academicians and jurists including writers on this blog have indicated that AK Roy's judgment should be reviewed or at least future cases of executive inaction should be viewed differently keeping in mind the Fire Brigades Union and Aeltmesh Rein decisions.


Q. Why are you so passionate about the issue? 


A. I run http://glaws.in/ a website on gambling laws in India. I started this website in 2010 because there was little research on this area and I strongly believed that the current gambling legislations are archaic and there is a need to change them. We need to legalise gambling and betting as it will be a great source of revenue for the governments. Additionally legalising gambling will reduce sources of revenue for the underworld and criminal elements thereby reducing black money and terror financing. It will also reduce fixing and cheating in sport. I have written about this in journals, online portals, newspapers etc. and also spoken on this in various fora.


Q. What do you think is the real reason for the state government not notifying the Act?  Are there any pressure from interested lobbies not to notify it?



A. There is no reason on record. Maybe the government simply forgot about this Act and didn't apply its mind. In any case, this is a politically sensitive issue and has moral dimensions and I would imagine that to be the main reason why the government hasn't notified this Act (though interestingly government has considered several proposals to setup casinos in the state, but I don't think they have linked those proposals to this Act or thought seriously about legalising casinos).


Q. Are there any other similar Acts, which remain unnotified in Maharashtra? 



A. I am aware of at least one another unnotified legislation, i.e. the Maharashtra Dog Race-Courses Licensing Act, 1976 which legalises dog races and betting thereof and was passed by the legislature around the same time. I am not aware of any other Maharashtra legislations which have remained unnotified for such a long period of time.


Q. Have you researched this subject at the national level? I am intrigued, for instance, about Section 16 of the Petroleum and Natural Gas Regulatory Board Act, which was not notified in 2007, when the Act's other provisions came into force, but got notified in 2010. The PNG Minister at that time said in Parliament that the text of the Bill did not reflect the intent of the statute. How the Government changed its view within three years of the other provisions coming into force is not clear. Also, the PNGRB seems to have taken the view that the provision, even though it was notified in 2010, took a retrospective effect from 2007. 



A. I have not looked at the provisions of the Petroleum and Natural Gas Regulatory Board Act in detail. I think the factual background of my case is slightly different. We will have to wait for the government's response before we could draw an analogy with the Petroleum matter.  


Q. Do you think a fresh challenge is possible in the Supreme Court, citing additional grounds, which were not raised in previous cases, the last one being Union of India v. Gajanan Mahajan Sansthan. 


A. I do think a fresh challenge in the Supreme Court is possible citing additional grounds not raised in Union of India v. Gajanan Mahajan Sansthan, (2002) 5 SCC 44. I have mentioned several grounds in response to your earlier question which are unique and have not been raised earlier. You can also refer to my petition for additional grounds which is available here.

Thursday, February 19, 2015

An account of the hearing in Teesta Setalvad case in the Supreme Court

At the conclusion of  the last hearing on February 13, Justice Mukhopadhaya was heard saying 'We will provide justice to both, but relief to one'.  This would have made some wonder whether the denial of anticipatory bail to Teesta and her husband could be interpreted as relief to the State. The atmosphere at Court No.4 that day left no one in doubt that the Court would not disagree with the High Court's denial of anticipatory bail to the appellants. 

The reason for the sudden change of Bench to hear the matter was the buzz among the lawyers and the journalists at Court No.5 today.  An official denial that Justice Mukhopadhaya and his brother, Justice Ramana have recused has been reported, but what was not reported was why the CJI had changed the Bench.  Well, the reason can only be speculated at this stage.  Did the Gujarat Government backtrack after witnessing the extent of support to Teesta from the civil society?  There was a hint of possible bias, as reported in a section of the press,  on the part of the Mukhopadhaya-Ramana Bench in favour of the Gujarat Government, but the details could not be confirmed.  In any case, the change of Bench was not an issue with the litigants, as even the Gujarat Government had no grievance about the sudden change of Bench on the eve of today's hearing. 

Jutice Dipak Misra's observations today set the stage - that liberty is paramount, that it cannot be kept in ICU or put on a ventilator. He was responding to Mr.Kapil Sibal's observation that the State cannot take upon itself the task of persecuting those who fight against it.  Responding to Mr.Mahesh Jethmalani, counsel for Gujarat, he also said anticipatory bail is neither the rule nor the exception.  He made two interesting observations: anxiety is in the realm of abstraction; wisdom is lost to knowledge; knowledge to data and finally to gossip. Teesta's counsel, Mr.Kapil Sibal offered his own: one who knows he knows is a fool.  Mr. Mahesh Jethmalani retorted he did not claim he knew. 

At one stage during the two-hour long hearing, it appeared as if Justice Dipak Misra was succeeding in persuading Mr.Mahesh Jethmalani to abandon one charge after another - sections 420, 468, and 120-B of IPC and 72A of Information Technology Act which have been invoked against Teesta and her husband. Then Justice Dipak Misra said only Section 406 IPC remained. Should liberty be put on ventilator just to pursue this charge, he asked Mr.Mahesh Jethmalani.   Non-cooperation of the accused with the I.O. is the only issue which necessitates custodial interrogation, Mr.Mahesh Jethmalani said.  'They are obliged under law to provide all documents', said Justice Dipak Misra, and added, 'You cannot expect answers in a particular manner'.   Personalities do not become protagonists; case rests on its own facts, Justice Dipak Misra observed.  It was clear that the Bench had made up its mind, to continue the stay and reserve the judgment in the meantime. 

Update 1:  Readers may find the Telegraph story here useful for additional reporting on the hearing. Also, livelaw's near-exhaustive report on the proceedings can be read here.

Update 2: My initial post in which I wrote that the Judges who first heard the case might have recused turned out to be correct.  SC's unusual clarification of the matter can be read here.




Wednesday, February 18, 2015

Teesta Setalvad's appeal in Supreme Court

Teesta Setalvad's appeal against the rejection of her application for anticipatory bail by the Gujarat High Court is coming up before a Bench of the Supreme Court, other than the one which heard the case on 13th.   On 13th, the Bench comprising Justices S.J.Mukhopadhyaya and N.V.Ramana heard the case, and adjourned it for detailed hearing on 19th. Tomorrow's cause list has listed the case under Court No.5 (Item 2), before Justices Dipak Misra and Adarsh Kumar Goel.  It appears that the Bench which heard the case on 13th has recused itself from hearing it.  With this change in the Bench, the chances of  Teesta Setalvad and her husband, Javed Anand securing the anticipatory bail from the Supreme Court have brightened up.  During the last one week, civil society has been busy campaigning against her custodial interrogation.  My article on the issues involved has appeared here, followed by another piece from Mumbai.   Prashant Bhushan has written a persuasive piece against custodial interrogation, where it is not warranted, in the Times of India today.

Update:  The composition of the Bench hearing this matter was changed at the behest of the Chief Justice on the administrative side, according to Times of India, and not because the previous Bench recused.  

Monday, February 16, 2015

Sonu Sardar v State of Chattisgarh

The review petition filed by the death row convict, Sonu Sardar against his death sentence in the Supreme Court was dismissed on February 10 after a day-long hearing.  The brief order uploaded now at the Supreme Court's site (R.P.(Crl) No.370/2014) just says that its judgment dismissing his appeal against the death sentence does not suffer from any error apparent warranting its reconsideration.  The order is disappointing because it does not answer some of the important issues which came up during the arguments.

One was the meaning of "extreme youth", which Bachan Singh said, is an important factor meriting commutation of death sentence of a convict.  Should the term be understood as an accused who has just crossed the juvenile age and attained adulthood?  Sonu Sardar was just 18 years and two months when he committed the crime, although his age at the time of commission of crime was wrongly recorded in the judgments as 23. Justice J.Chelameswar, one of the three Judges on the Bench, suggested that Bachan Singh used that expression because the Juvenile Justice Act at that time (in 1980 when Bachan Singh was delivered) was not uniform (across the States).  The question arose as Justice Chelameswar was keen to know how the Court can conclude that there is no possibility of reformation of the convict.  Raju Ramachandran, counsel for Sonu Sardar,  suggested that while there can be a presumption that youth and tender age are factors which could help reformation, it could be dislodged by the prosecution.

Justice Chelameswar specifically agreed with Raju Ramachandran that the fact that the convict did not participate in the jail break could be a mitigating factor, but was reluctant to place greater weight on the jailor's report recommending commutation of sentence for the convict on this and other grounds, as compared to the courts' conclusion that he did not deserve commutation.

And then there are other issues: the convict was part of a five-member dacoity gang which murdered four members of a family including two children.  Apart from him, and another minor, the other three are absconding.  The Court was doubtful whether Sonu Sardar was guilty of giving the fatal blow to the victims, and wanted the State to produce evidence to it. It is not clear whether the State satisfied the court on this issue.  The application of Section 396 IPC, therefore, is problematic, as there are precedents to show that in such cases, the Court gave benefit of doubt to the convict, and reduced the death sentence to life sentence.  Besides, the only child witness did not witness the actual commission of the crime, before she ran away from the scene of the crime.

As Sonu Sardar is unlikely to benefit from the delay factor in disposing his mercy petition by the President, all doors seem to have been closed for him, unless the President gives due consideration to his second mercy petition, following the rejection of his review petition afresh by the Supreme Court. 

Friday, February 13, 2015

Constitutional Court Of South Africa: Invitation For Applications For Foreign Law Clerks

The Justices of the Constitutional Court of South Africa are pleased to invite applications from outstanding recent law graduates and young lawyers interested in serving as foreign law clerks.  Candidates may be appointed to start as soon as 1 April 2015.

Background

South Africa continues to be regarded as one of the most intriguing and compelling examples of constitutionalism in the transition to democracy.  Its Constitution is viewed as one of the world’s most progressive founding charters.

The Constitutional Court, the country’s highest court, is the guardian of that promise.  It has, in a range of ground-breaking decisions, given content to the Constitution’s guarantees by, for instance, ruling the death penalty unconstitutional; upholding full equality for gay and lesbian people; declaring that resident non-citizens are entitled to social benefits; and ordering the government to make anti-retroviral treatment available to pregnant mothers living with HIV/AIDS.

A highly respected commentator, Justice Ruth Bader Ginsburg of the United States Supreme Court, stated the following in the context of a discussion of new democracies:

“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012.  I might look at the Constitution of South Africa.  That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights [and] had an independent judiciary.  . . .  It really is, I think, a great piece of work that was done.”

About the Position of a Foreign Law Clerk

Each year, 15 to 20 young lawyers from around the world serve as foreign law clerks to the Constitutional Court.  Working alongside two South African law clerks, foreign law clerks assist a specific judge in performing his or her duties. 

The responsibilities of foreign law clerks are essentially the same as those of their South African counterparts and similar to judicial clerks elsewhere in the common law world.  These include extensive legal research and writing, as well as the formulation, drafting, and editing of judgments.  The Court itself is highly collaborative, allowing for substantial engagement among clerks from all chambers.

Foreign clerks are usually only appointed to serve one six-month term.  However, some may serve for longer subject to agreement and, at times, in more than one Chambers.

Foreign law clerks are not remunerated by the Court.  Therefore, it is essential that they seek their own funding to cover their expenses, including food, accommodation, travel to and from South Africa, visas and travel to and from work daily.


Requirements

Foreign law clerk applicants must be in possession of an LLB degree or an equivalent degree (such as a JD) or in the final year of study for such a degree.  Further, they must be fluent in English, the primary language of the Court.

Applicants should also demonstrate an interest in constitutional, comparative and international law.  Academic excellence, relevant research experience, and one to two years of work experience (especially clerking for another court) are all preferred.

Substantial knowledge of South African law is not a prerequisite, but familiarity with South Africa’s history and contemporary affairs is highly valued.

Application Process

Applications for foreign clerks will be considered on a rolling basis subject to some important deadlines.  Applications for the first round of 2015 hiring will be accepted from 1 February to 31 March 2015.  Applicants should propose start dates that would begin prior to December 2016.  The Court will also accept applications during a second round of hiring from 1 July to 31 August 2015, at which time existing applicants are welcome to revise or supplement their applications.  Due to the high number of applications, the Court will only respond to successful applicants.

Applications must include the following: (1) a cover letter describing the applicant’s interest in the Court’s work that must specify a proposed start date (or range of start dates) for which he or she would like to be considered; (2) a full curriculum vitae; (3) copies of all post-secondary academic records (unofficial transcripts are permitted); (4) a legal writing sample of approximately 6-12 pages; and (5) at least two reference letters (at least one academic and one professional).  Please note that applicants may either have references send the letters directly to the Court or applicants may compile the letters and send a complete application to the Court themselves.

Applications should be submitted to Mr Mosala Sello in the Chambers of Justice Johann van der Westhuizen, who will respond with an email in due course acknowledging receipt of each application:


Post
Constitutional Court of South Africa
Attn: Mr Mosala Sello
Private Bag X1
Braamfontein
2017
Email
Mr Mosala Sello




Further details on the programme may be found on the Constitutional Court website: www.constitutionalcourt.org.za.  Applicants requiring additional information are welcome to contact Mr Sello via email (sello@concourt.org.za) or telephone (+27 11 359 7427).

The State of Judicial Statistics in India

I recently wrote a blog post for the Rule of Law Project at DAKSH, on the state of judicial statistics in India. The post highlights concerns with data collection methodologies within the judicial system, as also with the lack of evidence based reform of the judiciary. I'd welcome your comments and insights on the issue.


Thursday, February 12, 2015

Seminar on Judicial Independence -- Bangalore, February 15, 2015

Guest Post by Shreyas Jayasimha, Advocate, Karnataka High Court
Karnataka (India) Section of the International Commission of Jurists are delighted to invite you to a seminar on

Independence of Judiciary and National Judicial Appointments Commission

Date: February 15, 2015 (Sunday)

Venue: Karnataka Judicial Academy

Crescent House, Crescent Road, Bangalore – 560 001.


Background on KSICJ

The Karnataka (India) Section of the International Commission of Jurists, which was formerly known as the Mysore (Karnataka) State Commission of Jurists, owes its existence to the progressive and erudite members of the Bangalore Bar, who founded it on 4th April 1959. The inspiration was the International Commission of Jurists, which was founded in 1953, in the aftermath of the Second World War. Its main role was to defend Human Rights and fundamental freedoms, so that the universal Declaration of Human Rights adopted by the United Nations General Assembly on the 10th of December 1948, could become a reality in all parts of the World. The ICJ has been functioning and fighting many a battle, such as against apartheid in South Africa and the repressive regimes in Spain, Argentina and other parts of the World. The ICJ has worked tirelessly for the evolution of many International Human Rights Instruments for the propagation of the Rule of Law, such as the Declaration of Delhi (1995), the Bangalore Declarations (1995), etc.

As on date, the Karnataka (India) Section is the only active affiliate of the ICJ in India. Continuing its role in galvanising public debate on important legal issues, particularly those concerning the rule of law - the KSICJ has organised this seminar on Independence of Judiciary and National Judicial Appointments Commission.  

Theme

The judges in India's Supreme Court and High Courts are the guardians of our democratic institutions and fundamental freedoms. Especially today when the public increasingly turns to judges, almost exclusively, to safeguard our constitutional values. This calls for a rigorous evaluation of the competence and qualities of those who occupy these positions and the processes by which are appointed. However surprisingly, the widespread concerns regarding competence and efficiency of judges, their independence and their accountability has not been matched by public or parliamentary debates on these issues. The current seminar therefore, is an attempt to remedy this. It hopes to provoke public debate and invite comments of respected jurists on these significant issues.

Programme and Speakers

Hon'ble Mr. D V Sadananda Gowda (Union Minister of Law) will inaugurate the seminar and Mr. Anil Divan Senior Advocate, Supreme Court of India will deliver the keynote address. Following the welcome address by Mr. S.S. Naganand Senior Advocate President Karnataka (India) Section of the International Commission of Jurists, there will be two sessions chaired by Mr. Justice V.S. Malimath (Former Chief Justice of Karnataka and Kerala High Courts) and Mr. Justice S. Rajendra Babu (Former Chief Justice of India). Papers will be presented by several distinguished speakers including Justice R Jayasimha Babu (Former Judge, High Court of Karnataka and Madras), Mr. DLN Rao Senior Advocate, and advocates Mr. V Sudish Pai, Mrs. P Anu Chengappa, Mr. Shreyas Jayasimha and Mr. Amit Pai. The closing session will be addressed by Mr. Prashant Kumar, Advocate and President-elect Law Asia.

Delegate Fee

Students: Rs. 200/-

Practicing Advocates with less than five years experience: Rs. 300/-

Other Advocates: Rs. 500/-

Senior Advocates: Rs. 2000/-

Custodial Interrogation and Civil Liberties

Teesta Atul Setalvad v State of Gujarat may well be a test case to decide whether the State's eagerness for custodial interrogation of an accused has to be given primacy over the accused's civil liberties. The Gujarat HC's order, delivered today by Justice J.B.Pardiwala, rejecting social activist Teesta's anticipatory bail application is fairly detailed, and a pointer to the possible miscarriage of justice in her case. 
Teesta's appeal against High Court's order will come up on February 13 for hearing before Justices Sudhansu Jyoti Mukhopadhyaya and N.V.Ramana at Court No.4 as Item No.57.
Gujarat High Court's order can be downloaded from Gujarat High Court's site. Case Number is CRMA 4677/14, delivered today. 
Today, it came up before the CJI's Bench which posted it for hearing before the appropriate bench tomorrow, while granting interim protection to the appellants till then. Senior advocate, Kapil Sibal, is representing the appellants.

Monday, February 09, 2015

Supreme Court stops short of revisiting UCC debate

In this judgment authored by Justice Adarsh Kumar Goel, and delivered today, the Supreme Court has upheld the validity of the Government servants conduct rules which prohibit second marriage when the first marriage is subsisting.  The appellant, a Muslim, challenged the validity of the Conduct Rules, on the ground that it violates Article 25.  The Court dismissed the contention by relying on Sarla Mudgal v Union of India , and Javed v State of Haryana.   In Sarla Mudgal , the Court had suggested to the UOI to enact a Uniform Civil Code and in a case last year, the Delhi High Court dismissed a petition seeking a direction to the UOI to enact UCC. [The judgment is here]
In Javed, the challenge was against a law which sought to disqualify successful candidates in Panchayat elections, if they had more than two children. The Supreme Court upheld the law, and dismissed the challenge.
What one finds interesting in both Javed and Khursheed Ahmad Khan is that the Supreme Court has carefully avoided any reference to the enactment of UCC.

Saturday, February 07, 2015

Transnational Law Summer Institute, King's College London


Guest Post by Prabha Kotiswaran 

King's College London is organizing its inaugural Transnational Law Summer Institute this July. Do consider applying if you are an early career researcher or doctoral student.
 
Scholarships are available for exceptional students from across the globe - so please do share with your personal international contacts. Full details are available on the Transnational Law Institute web pages. 

 

Thursday, February 05, 2015

The death wish of the Constitution?

Guest Post by Arvind Narrain

Over the last few days, there has been considerable discussion of the controversial use by the BJP of the original, unamended Preamble to the Constitution of India in an advertisement campaign.  See, for instance, the views of Upendra Baxi and Salil Tripathi on this issue.  In the following guest post, Arvind Narrain of the Alternative Law Forum sets out his view on the questions involved. 

The present political dispensation hinting that they would go by the unamended version of the preamble (which did not have the words socialist and secular in it) has stirred  the pot of controversy.

The intellectual support for this move has been articulated by Ravi Shankar Prasad who as reported by the Hindu (29.1.15) argued that the amended preamble is inauthentic. The inauthenticity according to Ravi Shankar Prasad resides in two factors: the first being that the framers of the Constitution did not deem the two words in controversy, socialism and secularism, necessary and secondly that the words came in as part of the emergency during Indira Gandhi’s authoritarian rule. Under pressure from various quarters for his statement as reported in the Hindu, Ravi Shankar Prasad claimed  in a clarificatory statement that he had been misquoted. However regardless of  the withdrawal, the reasons articulated by the Minister in his initial reported statement need to be critiqued as those reasons continue to be cited in support of the demand to replace the preamble with the unamended version.  

The question of whether the preamble can at all be amended has been answered by the Supreme Court in Kesavananda Bharti where the Court held that all parts of the Constitution including the Preamble can be amended save what is “the basic structure or framework of the Constitution.”

The philosophical justification for recognizing the legitimacy of  constitutional amendment was well articulated by Justice Khanna in Kesavananda who quotes Thomas Jefferson to opine that:

Each generation according to Jefferson should be considered as a distinct nation and with a right by the will of the majority to bind themselves but none to bind the succeeding generations, more than the inhabitants of another country. The earth belongs in usufruct to the living and the dead have neither power nor the right over it.

The caveat introduced by Kesavananda in this otherwise unlimited power of each generation to change the constitution is the limitation imposed by the basic structure doctrine. One way of understanding the doctrine of basic structure is that it is a way of limiting parliamentary power in a country which has minorities of many stripes and hues.   By limiting the power of parliament to amend, the Court is recognizing that giving unlimited power to an institution which functions on the basis of the power of the majority, will put minority rights at the mercy of majority whims and fancies.  Kesavananda is deeply concerned about the dangers of unbridled majoritarianism and what it can do to the concept of a diverse and plural India.

As Justice Sikri observed in Kesavananda:

There is no hint anywhere that abrogation of minorities rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British Plan, the setting up of the Minorities Sub- Committee, the Advisory Committee and the proceedings of these committees as well as the proceedings of the Constituent Assembly mentioned above, it is possible to read the expression ‘amendment of the Constitution’ as empowering parliament to abrogate the rights of minorities.

Justices Hegde and Mukerjea have observed that:

Our constitution was framed on the basis of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantees given to the minorities may become valueless.

 Kesavananda is equally concerned about what those with economic power can do to those who lack economic resources. Within Kesavananda’s perspective, a political  majority  which is based upon the wealth of the few can be deeply injurious to the lives of the many. To protect those who would otherwise be at the receiving end of an economically powerful  political majority, Kesavananda recognises egalitarianism and the welfare state as part of the basic structure.

As Justices Hegde and Mukerjea opined:

On a careful consideration of the various aspects of the case, we are convinced that the parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our poli[t]y, the unity of the country, the essential features of the individual freedoms secured to the citizens. Nor has the parliament the power to revoke the mandate to build a welfare state and egalitarian society.

The recognition of minority rights as part of the basic structure necessarily implies a defence of secularism by Kesavananda. The recognition of egalitarianism and the welfare state as part of the basic structure implicitly recognizes  that socialism too is part of the basic structure. As such, the introduction of the words secularism and socialism through constitutional amendments is not destructive of the Constitution but rather explicates the basic structure of the Constitution and hence come within the power of the parliament’s power of amendment.

What are prohibited are amendments which destroy the Constitution. As Justices Hegde and Mukerjea opine:

Despite these limitations, however, there can be no question the amending power is a wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligations imposed on the state. It can also be used to reshape the Constitution within the limits mentioned earlier to make it an effective instrument for social good. We are unable to agree with the contention that in order to build a welfare state, it is necessary to destroy some of the human freedoms. That at any rate is not the perspective of our Constitution.

Going by a close reading of Kesavananda, clearly the proponents of the unamended preamble cannot make the case that the amendments introducing the words socialism and secularism are tantamount to tampering with the basic features of the Constitution. In fact the introduction of these words merely  makes explicit what is implicit in the Constitution.  This is the unequivocal conclusion of the Supreme Court in S.R. Bommai where Justice Ahmedi pronounced that:

Notwithstanding the fact that socialist and secular were added in 1976 by Constitutional amendment, concept of secularism was embedded in our constitutional philosophy. The amendment made explicit what was implicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. The Constitutional abhorred discrimination on grounds of religion....

 The hearkening by Ravi Shankar Prasad to what the Constitution meant originally is disingenuous as there is no conflict between the original ideals in the preamble and the introduction of the words secular and socialist through the 42ndamendment.

 The insistence on the ‘original preamble’ is not out of any real love for the Constitution. What the current ruling dispensation wants to say is they have a  problem with the notion of both secularism and socialism. To invoke the dubious legacy of the 42nd  amendment is to instrumentalize history, with the sole objective of destroying what they claim to protect. As such the bluff should be called.

 Again the last word rests with Justice Khanna (of the famous dissent in the Habeus Corpus case) who in Kesavananda observed that:

Provision regarding the amendment of the constitution does not furnish a pretence for subverting the structure of the constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful hara-kiri?

 Does this clamour for the unamended preamble  ‘embody the death wish of the Constitution’  and are those in the forefront  of this demand nothing more than the executioners of the Constitutional idea of India?