Wednesday, July 29, 2015

[Day 3] Constitution Bench Reference in Union of India v. Sriharan

[The report on arguments presented on Day 3 of the hearings (28.7.2015) is by Nishant Gokhale]

The Constitution Bench continued hearing the matter today. The Solicitor General was asked to continue his arguments today by the Bench from the point where he had left off on the previous date of hearing, i.e. 23rd July 2015.
At the outset the SG pointed out that the curative petition in the case of V. Sriharan v.  Union of India challenging the commutation of death sentence to life imprisonment was pending before the court today. When asked by the Bench whether that would change anything, the SG conceded that since the reference raised larger issues, they would have to be addressed, but if the curative petition were to be allowed, then in the facts of this present case, the issue of the power of the State Government or Central government to grant remission would become moot. However, the Bench requested him to proceed on the issues raised in the reference.
The SG proceeded to address the court on the Maru Ram case, urging that some conclusions in that case required to be revisited by this Bench. He submitted that while it was now beyond dispute that life imprisonment meant imprisonment for ones whole life, it would have to be seen how the power to grant remission would require to be construed in cases of life imprisonment. The SG submitted that there was a finding in the Maru Ram case that section 433-A of the CrPC could be treated as a guideline for exercise of powers under Art. 72 and Art. 161 of the Constitution thereby implying that it should ordinarily not be exercised in cases where 14 years of a life sentence had not been served. He further sought to draw support from the opinion of Justice Krishna Iyer in this case, where he describes sections 432 and 433 of the CrPC as being “modus operandi” of the powers under the Constitution. The bench however raised the query as to whether this was merely obiter dicta as the conclusion eventually reached was that these could act as a guidance for the exercise of constitutional power under Article 161. In response the SG stated that this position requires to be revisited as it was settled law that the power of these two high constitutional functionaries could not to be curtailed by the CrPC. He argued that the CrPC being merely a procedural and not a substantive law, could only lay down procedure to be followed but could not in any way curtail the powers of the Governor and President under the Constitution. He answered the query raised by the bench stating that there did not seem to be any conflict between the power available under Article 161 and the power to the State Government under the CrPC. He said that the CrPC was a subsequently enacted legislation and it would be presumed that the persons who drafted the CrPC knew about the powers and scope of Article 161 and therefore the powers of the State Government would always have to be read as subservient in the constitutional scheme. The SG thereafter read the case of Ashok Kumar @ Golu v. Union of India (1991) 3 SCC 498 which held that the observations in Maru Ram’s case that guidelines be framed in the case of exercise of powers under Art. 72 and 161 was merely obiter dicta and could not be considered to be in conflict with Kehar Singh’s case which has said that the power of pardon under Art. 72 is a high constitutional power which can operate in myriad ways and does not require any specific guidelines to be laid down.
In response to a query from the bench as to whether the powers of the Governor and President were to be exercised by them alone, the SG submitted that there was not a single instance  that could be pointed out where from 1961 till 2014, where it could be shown that the President or the Governor had “acted on their own”. He submitted that there was a constitutional bar on even the President to act contrary to the aid and advice of the council of ministers under the Constitution. In his support he read out Articles 74 and 77 of the Constitution which required the President to follow the aid and advise of the council of ministers and to frame rules of business for the government. He further drew support from Article 53 of the Constitution which states that the executive actions of the Union were to be carried out by the President or officers subordinate to him. He mentioned that the advise tendered by the council of ministers would be similar to he advise tendered under the CrPC and therefore it could not be said that sections 432 and 433-A  conferred any special powers upon the executive.
On a query by the bench, the SG admitted that Art. 72 and 161 did have some linkage with sections 432 and 433 of the CrPC and that it would be open to the prisoner to approach the same authority if there was a change in circumstances. On being asked by the bench as to what these circumstances could be, the SG submitted that these would mainly be a long period of incarceration, conduct in prison, health status of the prisoner, signs of reformation etc. and that these should be weighed by judicial determination as prescribed under section 432(2) of CrPC. The SG contended that while section 432(2) was only for remission and suspension of sentence and used the word “may”, but , argued that this word ought to be used as “shall” to section 433 which deals with commutation of sentence. However, the Bench however, identified several pitfalls such as lack of clarity as to which would be the appropriate court and if 161 and 72 powers could be exercised, even after the stat government has commuted the sentence based on judicial determination, it would still be subject to review by executive authorities, which could lead to embarrassing positions for the judiciary.
The SG thereafter started addressing the court on the first question raised in this reference. The SG argued that the courts in the past had  in several cases resorted to creative sentencing in some cases where consecutive sentences were handed out or where the prisoner after being found guilty had been spared the death penalty on a submission made by him that he would not seek remission for his whole life. The SG was thereafter reading from the case of Swamy Shdraddhanand and submitted that the bench was looking to create a rung in between death penalty and life imprisonment for a period of 14 years.
The SG will continue his arguments tomorrow (29.07.2015)

Tuesday, July 28, 2015

Call for Associate Editor, Centre for Law and Policy Research, Bangalore

The Centre for Law and Policy Research (CLPR) is a non-profit organization based in Bangalore established to promote law and public policy research, public interest litigation and interventions in legal education. We have embarked on a new initiative titled - Constitutional and Civic Citizenship – where we aim to foster greater public awareness of India’s constitutional history and an understanding of how this history has shaped and informed the most challenging legal, governance and public policy issues that we encounter today.

The initial stage of the project aims to make the rich debates and discourse that accompanied the framing of the Constitution of India readily accessible to lawyers, judges, academics, historians and the public at large. The Constitution of India that was adopted on January 26, 1950 was the product of detailed discussions and debates of the Indian Constituent Assembly that had 165 sittings over a period of 2 years and 11 months. While transcripts of the Constituent Assembly Debates (CAD) have been preserved and are available as online sources, they have, to date, not been organised in an easily accessible and searchable format. We intend to make the ‘rights’ portion of the CAD available on a website that will be searchable based on a variety of criteria including thematically, speaker names, specific articles of the constitution etc. Through this, we hope to make the CAD more accessible and user friendly for a wide audience, which in turn will make the debates both a useful tool for civic education and allow for greater engagement with India’s constitutional history.

We are looking for an Associate Editor to join the CAD project for a period of 4 months at the offices of the Centre for Law and Policy Research, Bangalore during which s/he will help us complete the debates on fundamental rights and directive principles. The primary responsibilities of the Associate Editor will be to supervise the work of CAD coders who are engaged in the coding and tagging of the transcripts of the CAD. The Associate Editor will also work on all other aspects of the project and other related engagements.

We require candidates for the position to be well versed in Indian Constitutional Law and History, and preferably have a Master’s degree in Law, History or Political Science. Interested candidates should write to the undersigned with their Resume along with a brief note on why they would be a good fit for the position.

Aparna Ravi –
Senior Researcher

Centre for Law and Policy Research, Bangalore

Friday, July 24, 2015

[Day 2] Constitution Bench Reference in Union of India v. Sriharan

 [The report of the arguments on Day 2 is once again by Nishant Gokhale]
Continuing from yesterday’s post, the Solicitor General continued his arguments today (Thursday, 23rd July 2015).

He relied greatly on the judgment in Maru Ram's case. He argued that this judgment would be read to mean that the power under Art. 72 and Art. 161was de hors the power under sections 432 and 433-A of the CrPC. He stated that this case had rejected the challenge to section 433-A as a violation of Article 14. However, the Court in that case had questioned the legislature coming to the conclusion that a minimum amount of 14 years would have to be spent by life convicts as being “penal superstition” as no scientific or research material had been placed by the state to support this period of confinement. However, he argued that the court had concluded that the long penal incarceration for persons convicted of grave offences was not invalid.

The Solicitor General however, was called away due to a family emergency and despite his return after a short while, was asked by the Bench to spend time with his family. In the meantime and thereafter, Ms. V. Mohona, Senior Advocate and thereafter the Advocate General of Karnataka addressed arguments. They were mainly aggrieved by the stay order passed by the Supreme Court on 9.7.2014 and implored the court to consider modifying their order. Mr. Rakesh Dwivedi, Senior Advocate appearing for the State of Tamil Nadu suggested that the stay be vacated for those persons to whom this reference did not affect (such as those who had not applied so far for remission at all despite having served their sentence). All the counsel were willing to accept  the submission of the Court that persons convicted of sexual offences would not get the benefit of this interim order. Mr. Rakesh Dwivedi, Senior Advocate even suggested that he would not even ask for interim relief for those persons who had been prosecuted by the CBI or the individuals who had been convicted in the Rajiv Gandhi murder case. The Court directed all the counsel for the States to take detailed instructions in the cases for which they seek to get the stay order modified. 

The court thereafter passed interim orders modifying their previous order to permit State governments to consider remissions to be granted to life convicts who had undergone 14 years or more of imprisonment. The court however directed that this order would not apply to those prisoners who have been sentenced to imprisonment for the rest of their lives or for a specific period such as 25 years. This order would also not apply in cases under TADA or by the CBI or cases involving rape and murder. This order will now enable State governments to start considering cases for remission for persons who have served a long periods of imprisonment which had come to a complete standstill since the courts interim orders last year.

Thereafter Mr. Rakesh Dwivedi, Senior Advocate appearing for the State of Tamil Nadu was called upon by the Bench to addresses the questions raised in the reference. He was asked to address the court on the second question as to whether the power under section 432/433 could be excercised after a parallel power had been exercised by the President under Art. 72 or Governor under Art. 161 or this  under the constitution. He submitted that although the powers exercised were indeed parallel, the power exercised by the Governor and President under the Constitution of India was at a higher constitutional plane than that exercised by the “appropriate government” assuming it to be the State government under section 432 or 433 of the CrPC. He said however, this question does not arise for the cases of those convicted under the Rajiv Gandhi murder case as the convicts there were sentenced to death initially and thereafter their sentences were commuted to life imprisonment by an order of the Supreme Court. He said that while the earlier powers of mercy and remission were sought to be exercised for the sentence of death, nothing precluded them from having a fresh consideration of their cases by the executive authorities after their sentences had been altered by the court as that would amount to a change in circumstances.

The Bench asked whether this power, once exercised by the executive, would get exhausted? Mr. Dwivedi stated that these powers, if once exercised by each authority would ordinarily get exhausted but would be available afresh if there was a change in circumstances. To this the court asked as to what the circumstances for seeking fresh exercise of this power could be and observed that this could be a highly subjective criteria. The bench observed that for the prisoner, every small change would be a change in circumstances and drew parallels to bail jurisprudence where prisoners apply for bail at the drop of a hat. Mr. Dwivedi responded by saying that while this list could not be exhaustive, it ought to include supervening circumstances such as terminal illness, alteration of punishment and that the change in material circumstances.

As regards the exercise of power under Article 72, he argued that this power was broader than that granted under section 432. On the meanings of the term “remission”, “pardon”, reprieve etc. Ms. V. Mohana Senior Advocate interjected and stated that the Law Commission's 41st Report referred to these terms in paragraph 29.5 but Mr Dwivedi stated that these would be read at length later. Mr. Dwivedi relied upon the case of GNCTD v. Prem Raj (2003) 7 SCC 121 in which it was held that even pardon, which was an act of grace, could be subject to conditions and was not unconditional.

The Bench asked whether it was possible to restrict the application of powers under Article 72 and 161 as it was observed that mercy petitions were sent repeatedly to the President and Governor by the same prisoner. Mr. Dwivedi replied stating that any restriction on these powers would have to be done through constitutional amendments and not by a dictum of the court. He said that there was a considerable amount of debate in the constituent assembly about these provisions, and while he would take the court through this at a later stage, it was at this stage sufficient to say that the framers of the constitution could have said that adding one more line was easy but not done for a reason.

On the first question as to the duration of life imprisonment, he submitted that while it was permissible in the USA and UK to give life sentences without parole, this had been prohibited in Mexico, Germany and some other countries in Europe as being contrary to human dignity. He implored the court to rule out this possibility of considering sentences of life imprisonment without parole. He submitted that such a sentence would be only due to sheer retributiveness and would totally rule out any chance of reform. He submitted, borrowing an expression by the bench, that while entering prison for a long sentence, the prisoners would feel as if they are entering a dark tunnel whereas a chance of remission would offer them a ray of light which was a reason to rehabilitate themselves.

He submitted that he did not have any objection to the court ruling that a sentence of life imprisonment would be for the whole life of a person, but the power of remission could not be taken away. He said, in the words of the Maru Ram judgment, the powers of Art. 72 and 161 of the Constitution are “untouchable” and “unapproachable” and therefore the court could not take away this. He argued that the prisoners have a right to be considered for remission which was guaranteed by the constitution and therefore the courts could not deprive him of it. To support this he relied on the case of Krishnan v. State of Haryana in which the precise question that has been raised and referred to a larger bench is whether section 32-A of the NDPC Act which prohibits the convict from seeking remission, suspension or commutation of the sentence is violative of Art. 72 and 161 of the Constitution.

The Bench to this asked, in especially gruesome cases why it should not be open to them to impose an exemplary sentence for a very long period of time without remission under Art. 142 of the Constitution. In response, Mr. Dwivedi said that the power under Art. 142 could only extend to punishments which were prescribed for by law and could not travel beyond the law to give a new type of punishment. He also said that the power of the Supreme Court under Art. 142 was not the power to amend the constitution or legislate and the only possible solution to enhance punishments was by parliamentary legislation.

The Bench thereafter asked what prejudice would be caused to the convict if a long life imprisonment without remission is given in a case of murder where the option to punish ranges only between death or life imprisonment. The bench stated that in such a case, the court by not awarding the death sentence was awarding a lesser of the two punishments. Mr. Dwivedi responded to this stating that this would amount to tinkering with the accused’s constitutional right to be considered for remission. He submitted that this would also make it a very subjective standard, especially if lower courts were allowed this play in the joints as the sentence may well depend on the anger that the courts felt at the crime. He implored the court to not make life imprisonment completely unreviewable as such a punishment would itself be de-humanising. He also urged that the court consider not only the crime for which the convict was being punished, but also the circumstances of the convict and the steps taken by the convict towards reformation. He said that while the Court appeared to be looking to create some sort of exception within the “rarest of rare” standard even in death penalty cases as expressed in the case of Swamy Shraddhanand v. State of Karnataka, the court could not, even if it wanted to, take away the powers of remission under the constitution. He also submitted that if in death cases, there are well established and mandatory requirements to enable the prisoner to ask for mercy even after the sentence of death had been confirmed by the Supreme Court, why life convicts should be deprived of this executive review of their cases.

Arguments in the matter will continue on Tuesday, 28th May 2015

Thursday, July 23, 2015

Constitution Bench Reference in Union of India v. Sriharan

(The Centre on the Death Penalty at National Law University, Delhi will be posting daily reports of the arguments in the Constitution Bench matter in Union of India v. Sriharan)

[The report of the arguments presented on 22nd July 2015 is by Nishant Gokhale. Nishant graduated from NUJS Kolkata in 2011 and joined the Death Penalty Litigation Clinic at NLU Delhi in April 2015]

The Supreme Court today heard the reference made by a 3 judge bench to the Constitution Bench in a case which involves the fate of the persons who have been convicted of killing Rajiv Gandhi. Tied to their fate also, are the cases of several other prisoners who have been sentenced to life imprisonment.
On 18.2.2014, the Supreme Court of India in the case of V. Sriharan v. Union of India commuted the death sentences granted to the persons convicted of assassinating Rajiv Gandhi to life imprisonment subject to remissions as they may be eligible for under the CrPC. On the very next day, i.e. 19.2.2014, the State of Tamil Nadu wrote a letter to the Union of India stating that it was proposing to release 7 persons convicted for the assassination of Rajiv Gandhi and requested that the Centre communicate their views to the State within 3 days. Against this action the Union of India approached the Supreme Court asking that this letter dated 19.2.2014 be quashed. The Supreme Court in the case of Union of India v. V. Sriharan referred the questions raised in this case to a larger bench of 5 judges to determine various questions which have been raised through this petition.
The questions before the Bench which is headed by the Chief Justice of India are questions of constitutional importance which deal with the issue of the powers of the President and Governor to grant mercy as well as the determination as to who is the appropriate government to commute the sentences under the CrPC. This also considers important questions raised in the case of Swamy Shraddhanand v. State of Karnataka where the Supreme Court considered whether there was another alternative between life imprisonment (which it found may be too less if it is only for a few years) or death which they found to be too harsh and irreversible. This reference to the Constitution Bench therefore is also hearing questions relating to what should be the length of life imprisonment and whether these can take away the power of the executive to grant remissions, reprieve, commutations etc. This case is being closely watched as it has questions of constitutional significance as well as for the political overtones it may have. The case is also being followed closely inside jail by persons serving life sentences as the Supreme Court on 9th July 2014 had prohibited the State governments from granting remission to life convicts till the disposal of this case.

After the Supreme Court yesterday refused to go into the preliminary objection the State of Tamil Nadu had that the Union of India cannot have fundamental rights enforceable under Article 32 against the State of Tamil Nadu and that this should have been brought under the Supreme Court’s original jurisdiction under Article 131, it was decided that the matter would be heard on merits. Today the Solicitor General of India, Mr. Ranjit Kumar (“SG”) opened arguments by laying out the constitutional and statutory framework for exercise of powers of remission.

Articles 72 and 161
He said that the power of the President to commute sentences was broader in Art. 72 as it had 3 limbs 72(1)(a) which deals with court martials, 72(1)(b) which deals with all cases where punishment of sentence is for an offence to which the executive power of the Union extends and 72(1)(c) which deals with death sentences. Art. 72(3) is a non-obstante clause which states that despite 72(1)(c), the Governor's power as regards death sentences is not taken away where it is specifically provided for by a law for the time being in force. He read Art. 161 to state that it is similar only to 72(1)(b) and had nothing specifically to do with death sentences or court marshals and the Governor could only interfere in death sentence cases as provided for by law. His reading was that 72 was the broadest power and 161 only where law provided a Governor could act in a situation where the State's executive power extended. He said that the CrPC specifically empowered the state government in some cases which would be adverted to later, and outside of this the Governor could not have power, atleast as far as death cases are concerned.

Extent of Executive Power of the Union and the States
He said that the extent of executive power was explained in Art. 73 (Union) and Art. 162 (States). However, he said that it was a settled proposition that the Union can legislate on a subject in the State List where it is in the national interest (Art. 249), during emergencies (Art. 250) or by consent of the states (Art. 252) He therefore argued that since criminal law and criminal procedure are in the Concurrent List, there is no bar at all which operates on the extent of the Union's executive power.

Mercy and Governors
On a question from the bench that the power in relation to death sentences appeared could be simultaneously exercised, the SG admitted that it would be an embarrassing position if the President has rejected the mercy under a State legislation (such as Maharashtra Control of Organised Crime Act which provides for death penalty) and thereafter if the Governor was to be approached for a decision. The SG later during the hearing read out the MHA Guidelines on disposal of Mercy Petitions which states that the Governor would first have to dispose off the mercy petition before it went to the President.

On being asked about a possible overlap in the jurisdictions, he said that the Law Commission's 41st Report (para 29.6) which said that the Government of India Act, 1935 had section 295 which divided powers between the Governor General-in council and the Crown. While the Constitution has bunched both these powers together and there seems to be an overlap, this overlap is not harmful. He however said that he would reference Constituent Assembly Debates about these articles later during his arguments.

IPC Provisions
He then moved to the IPC where he read out some provisions such as sections 6, 7, 17 to set the context. He then argued that section 45 which defines "life" as the life of a human being would mean that life imprisonment was for the rest of the life of a person. He then read the punishments under section 53 where life imprisonment is one of the punishments prescribed. Section 54 provides the "appropriate government" with the power to commute death sentence to any other punishment provided for in the IPC. Section 55 provides the "appropriate government" the power to commute life imprisonment to any other sentence not exceeding 14 years imprisonment. Section 55A defines the appropriate government as being the Central Government where the Union's executive power extends and the State Government where the State's executive power extends as well as the state where the offender is sentenced. He said that therefore it is important that for the State to be the appropriate government, the issues of extent of executive power as well as situs of the trial would be material. 

He further argued that under section 57, when calculating fractions of imprisonment, life would be considered to be 20 years. Section 65 states that where a prisoner has not been able to pay fine, no more than 1/4th of the total period could be imposed as the sentence in default.

He argued that sections 392, 222, 457 and 458 specifically used the term "fourteen years" for the maximum period of punishment, whereas the offences introduced under the Criminal Law Amendment Act, 2013 in section 370(6) and 370 (7), 376-A, 376-D, 376-E use the term for "the remainder of that persons natural life".

To this the bench pointed out that before the 2013 Amendment there does not appear to have been the use of the expression "the remainder of that persons natural life". The bench also remarked if then life imprisonment such as that prescribed under section 302 mean something lesser?  The SG however said that the meaning of the term life imprisonment was very clear as laid down by Gopal Godse's case and Maru Ram's case.

CrPC Provisions
Coming to the provisions of the CrPC, the SG contended that the difference between section 432 and 433 was that while the former only kept the sentence in abeyance, the latter waived the sentence entirely. There was some debate about whether this would mean that the conviction and sentence would both go away or remain, but nothing conclusive was said nor any authorities cited.

As regards 433-A it prescribes that for commutation of sentence of life into a lesser sentence, no less than 14 years would actually have to be served. This, he argued, was in conformity with section 55 of IPC.

Regarding section 434 which grants the Center concurrent powers of remission the State government he submitted that this did not impose any bar on the Centre from extending this its executive power. He insisted that in this case, the refererence related to section 435 which requires the State Government to act in "consultation" with the Central Governments for an offence investigated by the CBI as in the present case for Rajiv Gandhi’s murder. While the bench said that the term consultation now had a judicially recognized meaning, the SG stated that he had only raised it as a specific question had been framed in the reference.

Exercise of powers by the Court:
The SG informed the court that the Supreme Court in a few cases had directed that the that life imprisonment be given without remission, or had fixed a period of life imprisonment between 35-25 years imprisonment or even directed that the period of remission would not start until a certain amount of time had been spent in jail.

The Solicitor General will continue his arguments tomorrow (23rd July 2015).

Wednesday, July 22, 2015

When an Attorney General represents a private party

Mukul Rohatgi is not the first Attorney General to apply for and obtain permission from the Central government to represent private parties in a given case. According to senior advocates of the Supreme Court, many of his predecessors, including M.C. Setalvad, C.K. Daphtary and Soli Sorabjee have used this option to represent private parties after assuming office as the AG.

However, opinion among them is sharply divided over whether there is a compelling enough reason to justify Rohatgi’s appearance for a four-star hotel (Hotel Sky Pearl) in its civil appeal in the Supreme Court against the Kerala Government on July 10.

The Central government, through successive office memorandums (OMs) issued in 2011, 2012 and 2014, has advised its law officers – including the AG – not to apply for relaxation of the rules barring their private practice “in a routine manner” but to avail this option only in exceptional cases with a compelling reason.

Rule 8(1)(a) of the Law Officer Conditions of Service Rules, 1987 says that a law officer shall not hold briefs in any court for any party except the Government of India or the government of a state or any university, government school or college, local authority, Public Service Commission, Port Trust, Port Commissioners, government aided or government managed hospitals, a government company as defined in Section 617 of the Companies Act, 1956, any corporation owned or controlled by the state, and any body or institution in which the government has a preponderating interest.

The term “law officer” here refers to the AG, the Solicitor-General, and the Additional Solicitor-General.

‘Exceptional cases’ rule

Rule 10 provides that where the Central government is of the opinion that it is necessary or expedient to do so, it may, by order, and for reasons to be recorded in writing, relax any of the provisions of these rules. A proviso to Rule 10 says that Rule 8 shall not be relaxed in relation to any matter where the Government of India or any Central government instrumentality is or is likely to be affected.

The latest OM on the subject was issued on October 24, 2014, and it reiterates the position that permission for law officers to appear in private cases in relaxation of the rules will be accorded only in exceptional cases. The OM, however, is silent on what makes a particular case exceptional. Similar OMs issued earlier on December 5, 2012 and August 26, 2011 have been cited.

The OMs regret the fact that law officers request permission to appear in private cases in a routine manner. “Sometimes, the number of requests is so large that it tends to take away sizeable amount of time of the law officer in private matters and in the process, their prime attention in Government cases suffers”, the latest OM says. Therefore, it requests law officers to restrain themselves from seeking permission to appear in private cases. “Any such request in future should be made only for compelling reasons and in exceptional circumstances. Prior approval of the ministry in all such cases may please be obtained”, the OM adds.

According to Ashok Desai, former Attorney-General, there is an interesting background to the framing of these rules in 1987, when Ashoke Kumar Sen was the Union Law Minister in Rajiv Gandhi’s government. Sen had commissioned a study on the AG’s office and pursuant to this, he wanted to change the rules so as to restrict the right of the AG to appear for private parties.

Prior to this, there was absolutely no restriction on law officers appearing for private parties, except for the restriction that they should not appear against the Union of India. Sen replaced this with a blanket ban on representing any party other than a specified list of bodies.

Despite this change in the rules, Desai recalls that late G.Ramaswamy, the AG between December 1990 to November 1992, appeared against the state of Karnataka in the Khoday Distilleries Limited case, claiming that he had obtained permission from the government. (Khoday Distilleries Limited and Others vs State of Karnataka and others, W.P.(c) 666/1990, disposed of on December 15, 1990)

Desai, who was AG between 1996 and 1998, did not appear for a private party. Although he is in principle opposed to the practice of law officers appearing for private parties, he does not want to comment on the propriety of his successors doing so.

Soli J. Sorabjee, who held the AG’s office from 1998 to 2004, recalls that he did appear for a private party while holding office  after obtaining permission from the government because he had represented the client earlier in the Madras High Court. When the case was being heard in the High Court, K.Parasaran, who had been the AG from 1983 to 1989, was the counsel appearing in that case for the opposite party.

Sorabjee sees nothing wrong in Rohatgi appearing for a four-star hotel in the bar licence case, because there is no stated policy of the Central government on this issue.

Critics of the AG’s appearance for a private party in the bar licence case have contended that his action conflicts with Article 47 of the Constitution, which directs the state to endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health.

Sorabjee’s answer to this is that the AG is challenging the state government’s policy of discrimination (between four star and five star hotels) in the guise of pursuing the directive to bring about prohibition, and not challenging the policy of prohibition itself.

The former Solicitor-General, Mohan Parasaran, however, is categorical that the bar licence case is not an exceptional case to which the government could grant permission to the AG to appear for a private party, as the Constitution obliges the government to bring in prohibition.

There are 23 appellants in the bar licence case currently being heard by the two judge bench of Justices Anil R.Dave and R.K.Agrawal. The next hearing of the case is on July 28.

Rule of thumb
A senior advocate of the Supreme Court suggests that certain factors do make a case exceptional so as to require a law officer to request relaxation of the rule barring him from private practice. He cited three such reasons.

First, it may be a part-heard case. Withdrawal from the case, due to the counsel’s appointment as the law officer, would mean the case has to be reargued all over again. The burden will be on the client, who has to bear the extra costs.

Secondly, the case may be a pro-bono commitment of a law officer, before his appointment. Or, it might involve payment of concessional fee by a client. Another senior counsel of the same eminent category may not be willing to argue the case for the same concessional fee.

Thirdly, the officer may wish to appear for a family friend, who might be, for instance, involved in a divorce proceeding; therefore, the appearance of the law officer for the private party may be essential in the interest of the client and this may not compromise the interests of the government.

These are not exhaustive of the factors which make a case “exceptional” so as to justify a law officer’s request to relax Rule 8 (1) (a) by the Government. Each case has to be examined on its own merits.

Rohatgi’s appearance for Hotel Sky Pearl and against the Kerala government may not violate the proviso to Rule 10 cited earlier, as he has not taken up a brief against the Central government. It is not unusual for law officers of the Union to argue against a state government. But does it qualify to be an exceptional case, in terms of the OMs?

The OMs themselves came to be issued because the government was embarrassed by the frequency of requests from law officers for relaxation of Rule 8(1)(a). The practice of liberal grant of permission to similar requests earlier probably encouraged the potential seekers of such permission, resulting in a spurt of such requests, which, in turn, led to repeated OMs on the subject since 2011.

Whatever the background, the OMs make it clear that the law officers must restrain themselves, and ought not to request relaxation of the rules, except for compelling reasons, to be recorded in writing.

Kerala liquor case
Rohatgi appeared for the respondents in State of Kerala vs B. Surendra Das, which was decided by Justices H.L. Gokhale and J.Chelameswar on March 5, 2014. In this case, the respondent, B. Surendra Das, owner of a three-star hotel had successfully challenged in the Kerala High Court the state government’s move to make three-star hotels ineligible for the grant of licences for the sale of Indian Manufactured Foreign Liquor. The Supreme Court set aside the High Court’s order, and upheld the state government’s move, but cautioned the government not to make four-star hotels too ineligible for the grant of licences until the report of a commission, appointed by the government, is received.

With the Kerala High Court upholding the state government’s policy to make even four-star hotels ineligible for the grant of bar licences on March 31 this year, the aggrieved hotels are once again before the Supreme Court challenging the High court’s order.

The issues in B. Surendra Das and Hotel Sky Pearl may be the same, but the factual matrix is different. According to Anupam Lal Das, advocate in Rohatgi’s team, the AG appeared for a different client representing a four-star hotel in B. Surendra Das, as Sky Pearl was not one of the respondents in that case, but that cannot be a reason why he cannot appear for Sky Pearl now, as he continues to represent the interests of four-star hotels, whoever be the client.

Whether the government has given a speaking order in favour of the AG’s appearance for the private party in this fresh case before the Supreme Court, as required by Rule 10, is another question whose answer could throw light on the correctness of the AG’s move to represent a private party in this case.

A senior advocate of the Supreme Court put it succinctly: “Who can decide whether a law officer has a compelling reason to appear for a private party? Should the government decide, or leave it to the law officer concerned?”

The grey area this question involves may finally come to the rescue of the AG.

Tuesday, July 21, 2015

Early Career Research Opportunity

There are two postdoctoral fellowship opportunities available at Melbourne Law School to commence in 2016: the University of Melbourne’s McKenzie Postdoctoral Fellowship and the new Melbourne Law School Postdoctoral Fellowship.

The Fellowships are open to recently graduated PhD students of any nationality. Applicants must have been awarded their PhD in or after 1 January 2013.

The deadline for the McKenzie Postdoctoral Fellow expression of interest is Friday 31 July 2015. The deadline for Melbourne Law School Postdoctoral Fellowship applications is Sunday 30 August 2015.

Further information about these two opportunities for early career researchers to join Melbourne Law School is available here.

Monday, July 13, 2015

Call for Papers /Human Rights Protection, Human Rights Public Policies, Democracy and Governance

International Journal of Human Rights and Constitutional Studies (IJHRCS) is a journal based on an independent academic synergy of more than forty academics, experts in the field of human rights and governance from all over the world. Over the past two years it has foster the academic dialogue concerning all the modern subject of constitutional law and human rights protection from a global perspective. It had provided novel and original material in the fields of current economic and political crises, globalised democratic governance, human rights public policies, the theory and philosophy of rights, comparative constitutional law and methodology of law. The IJHRCS is an indexed by citation journal open especially to young researchers. 

International Journal of Human Rights and Constitutional Studies issues an open call to young academics and researchers on the following topics:
·       International constitutional law
·       International human rights protection
·       Comparative constitutional law
·       Constitutional theory and policy
·       Theory of rights
·       Philosophy of rights
·       Globalisation and governance
·       Constitutional rights, constitutional freedoms
·       Methodology of law
·       Constitutional politics
·       EU constitutionalisation
·       Migration and multiculturalism
·       Democratic deficit theory
·       Political parties and elections
·       Digital participation, e-democracy, e-governance

Information on the IJHRCS as well as guidelines for authors and submissions can be found in:

For information and questions you can contact the Chief Editor of the Journal (Ms Christina Akrivopoulou, PhD Constitutional Law AUTH, Greek Refugee Appeals Authority)