Wednesday, August 20, 2014

Questioning the National Judicial Appointments Commission Act, 2014 -- Guest Post by Smaran Shetty

With the passage of the 121st Constitutional Amendment Bill and the attendant National Judicial Appointments Commission Bill, the collegium system of appointments, now 21 years in the making, is sought to be replaced by the newly created National Judicial Appointments Commission (‘NJAC’). Unsurprisingly, concerns over this new method of judicial appointments have been articulated both in terms of a perceived incursion into judicial independence as well as the logistical uncertainties for the NJAC, which is tasked with appointments to all courts of the higher judiciary. This stance is tempered with a candid admission as to the limitations of the collegium system, which as is argued, although imperfect, still remains a relatively better mode of appointments in comparison to the proposed NJAC.

All of these fears are valid, from a stand point of preserving a constitutional balance intended to secure an optimal degree of judicial independence as well as questions of efficacious constitutional design. I wish to however move away from these macro level concerns, voiced in terms of how the NJAC may eventually vote, the undefined criteria of appointment of “eminent persons”, the dangers of a veto and possible executive capture of the NJAC. In this post, I wish to discuss certain alarming provisions within NJAC Act, that should alert us to the possible ways in which pervasive legislative control may be exercised over the newly contemplated appointment procedure.  

The NJAC Act, 2014 is passed in pursuance of the newly inserted Article 124A and 124B which establishes and gives to the National Judicial Appointments Commission constitutional status, while at the same time describing its composition, functions and powers. Under the NJAC Act, the procedure to be followed for appointments to the High Court as well as the Supreme Court is clearly spelt out. Most importantly, in furtherance of the newly inserted Article 124C, the NJAC Act, vests both the Central Government as well as the Commission itself, with rule making power to further define the manner in which appointments are to be made. 

The rule making power of the Central Government is rooted in Section 11, which provides for the power to fix the remuneration and other service conditions for the members of the NJAC. Section 11(2)(c), in the nature of a residuary clause, considerably expands this rule making power by stating “any other matter which is to be, or may be, prescribed, in respect of which provision is to be made by the rules.” On the other hand, the rule making power of the NJAC itself is rooted in Section 12, and empowers the Commission to prescribe regulations for the criteria to be considered for judicial appointments, the criteria for consulting members of the bar for such appointments and other important substantive and procedural questions.

An immediate concern, given the wide and overlapping rule making power of the Commission and the Central Government, is a potential for conflicting rules, and an uncertainty as to which set of regulations would prevail, if such a conflict were ever to arise. This fear is not entirely unfounded, since the Law Ministry is actively involved in the functioning of the Commission. The Law Minister himself is a member of the NJAC, and the Ministry is tasked with promptly forwarding details as to prospective judicial vacancies, to ensure timely appointments. Considering this intimate interface between the Law Ministry and the NJAC, it would be natural to foresee a situation in which the Law Ministry seeks to regulate the functioning of the NJAC, which may potentially over lap, and worse still, conflict the rules of the Commission.

More troubling however is Section 13 of the NJAC Act, which subjects the rules, made in furtherance of this act (both by the Central Government as well as the NJAC) to alteration by both houses of parliament. Sub-ordinate legislation drafted by the executive is not subject to a uniform standard of review by Parliament, and may vary depending on the terms of the statute vesting such power. Generally however, statutes require that drafted rules be laid before both houses, and changes may be made by the parliament within 30 days of such laying (resembling Section 13 of the NJAC Act). Rarely, is the operationalization of such rules subject to prior parliamentary approval. Sub-ordinate legislation drafted by judicial bodies under the Indian constitution are qualitatively distinct, and are not subject to similar oversight. For instance, under Articles 145 and 229, the Supreme Court and High Court respectively, are granted rule-making powers for the discharge of their constitutional duties as organs of the higher judiciary.

Although the scope this rule making power varies, the purpose behind the vesting of such power in constitutional courts, is to empower them to draft such regulations as may be necessary for the proper discharge of their duties. Towards that end, as well as to further secure judicial independence, the rules drafted by the Supreme Court under Article 145 are not made subject to the Union Parliament, but instead subject to the confirmation by the President. Similarly, rules made by the respective High Courts are not subject to modification or approval by the State Legislatures, but are subject to approval from the Governor of such a state.

Considering the proposed NJAC is a constitutional body, and that it performs a vital judicial function, without however being a judicial organ, the rules made by the Commission, should not be subject to parliamentary modification. The ability of parliament to alter, in any manner, howsoever insignificant, the regulations of the commission, seriously impedes the ability of the NJAC to determine for itself, the relevant criteria to be considered for the manner and method for judicial appointments. This is not to suggest that the regulations of the NJAC would be subject to no safeguards whatsoever. Under Article 145 and 229, rules drafted by judicial organs continue to be subject to judicial review, and may be struck down if repugnant to any constitutional provision. The rules of the NJAC, should therefore be treated of such a like nature, and should be made subject only to judicial review.

Section 13 of the NJAC Act, should then alert us to the indirect, yet significant manner in which the government may continue to retain unjustified supervisory powers over the Commission. If the rationale for the creation of the NJAC is that judicial appointments must be reclaimed from the exclusive domain the judiciary, then surely, it must also be insulated from governmental interference in the finer points of its functioning and parameters of deliberation. Importantly then, is the need to debate the constitutionality of the NJAC, not merely in broad claims of judicial independence, but in the more minute details of how such functionaries are to operate and whether the intended constitutional space for such a Commission to operate in, is encumbered by unwarranted government presence.

Interestingly, Arun Jaitley (the then leader of opposition) delivered a strident and informed speech in support of the new appointment procedure. Among the many valid points he made, he called for a shift away from “impressionistic” judicial appointments towards a more objective criteria for assessing prospective judges. He illustratively stated that the proposed commission while deciding the merits of a candidate should look into his/her performance at the bar, academic and scholarly work, record of reported judgments (if any) and probity as a judicial officer. These are no doubt valid points of consideration, and will surely form the basis of further regulation of the NJAC. If these criteria are meant to substitute judicial opaqueness in appointments, which they undoubtedly should, then these criteria must equally not be subject to suspect alteration by the Union Parliament.

Thursday, August 14, 2014

New Law Commission Report on Delays, Arrears, and Adequate Judge Strength

The Law Commission has come out with its 245th Report, titled "Arrears and Backlog: Creating Additional Judicial (Wo)manpower." The Report largely reflects the submissions made by the Law Commission to the Supreme Court as per the Court's directions in Imtiyaz Ahmad v. State of UP. This case started as a petition against delays in criminal trials. The Supreme Court directed the Law Commission to study the issue and submit its recommendations on the following point:
“Keeping in view that timely justice is an important facet to access to justice, the immediate measures that need to be taken by way of creation of additional Courts and other allied matters (including a rational and scientific definition of “arrears” and delay, of which continued notice needs to be taken), to help in elimination of delays, speedy clearance of arrears and reduction in costs. It is trite to add that the qualitative component of justice must not be lowered or compromised." 
Apart from various findings on adequate judge strength for the subordinate judiciary, the report highlights the abysmal state of data available about the functioning of the judiciary, which makes evidence-based judicial reform efforts an extremely difficult task. Therefore, any numbers that get thrown around about the problem of 'pendency' are likely to be grossly off the mark. The report also advocates shifting from a focus on "pendency" of cases as the parameter to evaluate the performance of the judicial system, to focusing on those pending cases which are delayed. Currently we have no rational yardsticks by which we can measure whether a case is delayed or not. The general fall back mechanism has been to adopt ad-hoc and impressionistic timelines, which are often very unrealistic given other resource constraints. 

For me, the Supreme Court's call for "rational" and scientific" approaches to policy making for the judicial system is a much needed and a very welcome step. It remains to be seen how the government and the Court respond to the report.

Nick Robinson and I, apart from many others, contributed to the report.      

Constitutionality of the Judicial Appointments Commission Bill

Lok Sabha and Rajya Sabha have passed the Constitution (121st Amendment) Bill 2014 and the Judicial Appointments Commission Bill 2014 simultaneously. The Bill seeking to amend the Constitution makes changes to the provisions relating to judicial appointment, inter alia empowering Parliament to pass the Judicial Appointments Commission Bill.

The constitutional problem is this: the constitutional amendment still requires the consent of several state legislatures before the President can sign it into law. Thus, the two Houses of Parliament have passed the Judicial Appointments Commission Bill on dates on which the Constitution does not (yet) authorise them to do so. The point is not merely technical. If the requisite number of state legislatures do not endorse the constitutional amendment, there is no doubt that the JAC Bill will be unconstitutional. The question is, if they do endorse the amendment, what is the significance of the fact that this Bill was passed by the Houses before Parliament had the authority to do so?

One possible solution might be for the President to not sign the JAC Bill until he is able to sign the constitutional amendment Bill into law (ie after the consent of the states has been secured). This would at least ensure that the JAC Bill wasn't formally enacted until Parliament had the power to do so (remember that under Article 79 of the Constitution, Parliament consists of the two Houses and the President). 

While this would be a wise course for the President to adopt in any case, there could still be a lingering question about whether any part of Parliament is competent to even initiate legislation at a time when it lacks the authority to do so. 

Update: Apparently the Minister told the Rajya Sabha that the government will not send the JAC Bill for assent to the President until the requisite number of states have ratified the Constitution Amendment Bill and it is assented to by the President.

Monday, August 11, 2014

Guest Post: Situating the Opposition--The Hypocrisy of Misrepresentative Government

Guest post by M. S. Ganesh and Venkatesh Nayak. M. S. Ganesh is Senior Advocate, Supreme Court of India and Venkatesh Nayak is with the Commonwealth Human Rights Initiative, New Delhi.


Somebody is not telling the truth. That is not an option. Or else somebody is profoundly innocent of constitutional law, praxis, conventions and Acts of Parliament. Ignorance of law is no excuse either.

The current imbroglio on situating the Opposition and its Leader in the Lok Sabha is a pernicious and diabolic undermining of representative democracy by those in – and with – Government. Potentially it is the Fourth Reich: it would take the Svast out of Svastika.

The reported opinion of the Attorney General to the Lok Sabha Speaker’s Office is that the Leader of the Opposition (LOP) can emerge only from a party that has a numerical strength of one tenth of the total membership of the House (See Kaul and Shakdher, Practice and Procedure of Parliament, 5th edn., 2001). The sole authority cited for this opinion is a parliamentary precedent established by a ruling / direction of the Speaker way back in 1956. However, these authors point out that “from the Eleventh Lok Sabha onwards, … the practice of according recognition by the Speaker in terms of Directions 120 and 121 was done away with” (id. at page 360).

In any event, the opinion of the Attorney General is confuted by (a) the constitutional provisions, (b) the parliamentary debates, (c) the enacted statute and (d) constitutional convention as codified and crystallised in that regard.

The Constitutional Provisions
Article 118(1) empowers each House of Parliament to “make Rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business”.

It is under this explicitly qualified sanction that the Rules of Procedure and Conduct of Business in the Lok Sabha have been framed. Clearly, these Rules cannot override or be antithetical to a law enacted on the subject by Parliament itself.

The Rules of Procedure do not deal with the recognition of the LOP by the Speaker. Rule 389 merely provides that all matters not specifically provided for in the Rules and all questions relating to the detailed working of these Rules shall be regulated in such manner as the Speaker may, from time to time, direct. Necessarily, even these omnibus residuary powers have to be read “subject to the provisions of this Constitution”.

The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 (LOP Act) is traceable to Entries 73 and 74 of the Union List in the Seventh Schedule of the Constitution. Entry 73 deals with salaries and allowances of Members of Parliament (MPs) while Entry 74 deals with the powers, privileges and immunities of each House and of its Members. It would be futile and ludicrous to contend that the Speaker can ordain and observe a parliamentary practice at odds with a law enacted by Parliament. Moreover, the constitutional principle is that the donee of a limited power cannot enlarge it into an unlimited one by the exercise of that power.

The Parliamentary Debates
The Statement of Objects and Reasons of LOP Bill explicitly declared: “Having regard to the important role of the Leader of the Opposition in a Parliamentary Democracy, it is considered that the Leaders of Opposition in the House of the People and the Council of States should be accorded statutory recognition and given salary and certain other facilities and amenities to enable them to discharge their functions in Parliament”.

The definition of the LOP in the Bill made a pointed departure from prevailing parliamentary practice / the Speaker’s Directions. It confined its scope to “the party in opposition to the Government having the greatest numerical strength”, and did not relate that strength to the total membership of the House at all.

In the ensuing debate in the Lok Sabha (without any demur in the Rajya Sabha), Hari Vishnu Kamath (Janata Party) moved amendment #15 to specify that the strength should be not less than one sixth  of the total membership of the House. The amendment was put to vote and negatived.

Alternatively, Samar Mukherjee (CPI-M) sought amendment #23 that the Opposition Party must be one “recognised as such by the convention and practice of the Parliament”. That amendment too was put to vote and negatived. In the result, Section 2, as it stands today was adopted (L S Debates, Vol. VI, August 8th 1977 at cc 105-108)

It is of some moment that many Members in these debates belonged to a previous avatar of the present ruling party.

The LOP Act
Section 2 defines LOP to mean that Member who is, for the time being “the Leader in the House of the party in opposition to the Government having the greatest numerical strength and recognised as such by … the Speaker…”.  With such explicit statutory language, there can be no implied recognition or prescription of a quota, as suggested in some quarters that ought to know better. Besides, Kaul and Shakder point out: “[T]he Speaker has only those powers which are given to him by the House or the Rules. He cannot start a new procedure of his own” (op. cit., page 122).

The Constitutional Convention
Once a convention is codified and crystallised, in a statute, the enactment prevails. It cannot be coloured and obfuscated by extraneous considerations. The Speaker’s Directions nos. 120 and 121 regarding recognition of a parliamentary party / group invoked are wholly irrelevant to the terms and operation of the LOP Act.

A leading English authority was convinced that: “[N]o matter how entrenched constitutional safeguards may be, in the final analysis it is the strength of character, personal integrity and depth of commitment to the principles of independence and the impartial representation of the public interest, on the part of holders of the office of Attorney General which is of supreme importance… It is these kinds of situations that induce widespread disillusionment with the ideals associated with democratic government” (John Ll. J. Edwards, The Attorney General, Politics and the Public Interest, 1984, page 67).


It is moot whether the desiderata have been met. The alternative is to write a new canon – DisMay’s Parliamentary Practice.

Sunday, August 10, 2014

Incoherence in India's Death Penalty Jurisprudence

In this short, but finely spun, piece, Suhrith Parthasarathy examines the Supreme Court's recent contortions over the death penalty. He argues that the forthcoming Law Commission report is an opportunity to clarify Indian jurisprudence on the subject.

As a related aside, Eugene Volokh offers this tortured analysis for why Ronald Reagan's would-be assassin cannot be retried for homicide. Reagan's press secretary, James Brady, died earlier this week. He was critically wounded in the assassination attempt, which took place 33 years ago. On a readability scale from 1 to 10, Volokh's analysis barely scores a 3. 

Thursday, August 07, 2014

Why Do Indian Courts Appoint Mostly Retired Judges as Arbitrators?

In a recent article, Badrinath Srinivasan examines how India's courts appoint arbitrators. Under the 1996 Arbitration and Conciliation Act, parties to an international arbitration, who are unable to fully constitute arbitral panels, may ask the Chief Justice of India to help them do so. Similarly, parties in domestic arbitrations may request the local high court's chief justice to appoint an arbitrator. Srinivasan argues that neither the Act, nor the rules made under it, provide much guidance on how such appointments are to be made. The practice varies across the country.

To study this matter, Srinivasan wrote to the Supreme Court and every high court. From their responses, Srinivasan finds that Indian justices strongly favor own retired colleagues as arbitrators. He argues that this over-reliance on former judges is misplaced. It ignores the fact that there are plenty of other competent professionals who'd make fine arbitrators including members of the bar.

Srinivasan also criticizes the general lack of transparency in judicial appointments of arbitrators. His research demonstrates that Indian courts significantly influence alternative dispute resolution mechanisms. They do so even while the Act purports to limit judicial interference in such mechanisms.

Call for Papers - AALS Section on Law and South Asian Studies

The Section on Law and South Asian Studies of the Association of American Law Schools invites papers for its session during the 2015 AALS Annual Meeting in Washington, DC, which is scheduled for January 3, 2015. The session theme is “The Postcolonial Lives of Colonial Law in South Asia.” Papers from the session will be published in a 2015 symposium issue of the American University International Law Review. The deadline for submission is August 15, 2014. More information can be found here.

Wednesday, August 06, 2014

Some recent books on rape law reform


Looting And Rape In Wartime: Law And Change In International Relations. By Tuba Inal, University of Pennsylvania Press, 2013, 280 Pages, $75. (hereafter referred to as Looting)

Redefining Rape: Sexual violence in the era of Suffrage and Segregation, By Estelle B. Freedman, Harvard University Press, 2013, Pages 387. (referred to as Redefining)

Up Against A Wall: Rape Reform and the Failure of Success. By Rose Corrigan, New York University Press, 2013. (Up Against)

Public Secrets of Law: Rape Trials in India. By Pratiksha baxi, OUP, 2014, Rs.1150. (Public Secrets)

This is a fascinating collection of books on the effectiveness of legal interventions to punish the perpetrators of rape in history and in contemporary times.  Of these, one has a global focus, two are confined to the U.S., with one dealing with history, and the other with the present, and the last one, revealing hitherto unknown aspects of rape jurisprudence in India, through ethnographic study of rape trials.  Reading these books together, one is sure to come across similarities in issues in public discourse on anti-rape law reform, whether in the U.S. or in India, differences in the social contexts notwithstanding.

In Looting, the author explores when and why states prohibited two closely associated practices in war – namely, pillage and rape.  The author teaches international relations at Izmir University, Turkey.  Given that women had historically been considered the property of men, why did the international laws that regulated pillage of property not include pillage of women – that is, why did the regulations against rape develop almost a hundred years later than the ones against pillage?  Although rape and loot continued to go hand in hand for centuries, why were both eventually prohibited and why was one prohibited before the other? These are the questions she answers in the book.

Throughout history, it is almost impossible to find a war where rape did not happen.  Like pillage, rape too came to be regarded as deviant and undesirable and eventually was prohibited.
In England, if rape victims said they were raped and described the ordeal, they would be considered unrespectable.  Since rape was a crime only when committed against a respectable woman, it became virtually impossible to prosecute and convict rapists.

Domestic rape cases in the late 18th and 19th centuries show that people did not even want to talk about rape in the context of the new prudery of the time. When it came to beliefs about preventability, however, rape was drastically different from pillage.  Historically, rape was considered a crime of passion that got out of control.   This was also the prevailing sentiment in the 19th century (as well as most of the 19th century). Rape was seen solely as a sexual act, rather than an aggressive and violent manifestation of sexuality.  Rapists were thought to have character disorders that made it impossible for them to control their impulses.

The attitude toward rape in war is particularly revealing in terms of demonstrating  the idea of inevitability.  What some scholars called a “sexual deprivation theory” of military rape seems to have been persuasive in the minds of the military and the statesman, as well as the general public, throughout much of history.   According to this theory, because military personnel do not have many sexual opportunities, they satisfy their sexual impulses through rape.   Rape was thus seen as an unpleasant yet inevitable  byproduct of war. 

Hague Conventions of 1899 and 1907 established the prohibition regime against pillage.   Since the Hague Conventions do not mention rape, it is not possible to derive any formal obligation, let alone a binding one, for states to prevent rape in war. 

The Geneva Conventions and the Additional Protocols continued not to prohibit rape.  While the first international legal document to mention rape as an unacceptable practice in war was the Geneva conventions, there are still some problems about the degree of obligations the Conventions impose on states to prevent rape in war.  Provisions are protective, but not prohibitive. It is more a recommendation and guideline to avoid, not a legal obligation to prevent.

Article 8 of the Rome Statute of the ICC (1998) defining war crimes explicitly mentions rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence as grave breaches of the Geneva Conventions.    The Rome Statute is also different from the Geneva Conventions in that state parties are responsible not only for the investigation and prosecution of grave breaches, but for all crimes under the jurisdiction of the ICC.  States are obligated to prevent the crimes mentioned in the Statute and prosecute the violators or hand them in for prosecution to the ICC.  Additionally, the ICC as a court with  “binding third party decisions”, has jurisdiction over all the crimes mentioned in the Rome Statute, meaning it also has the highest degree of delegation.  Therefore, with high degrees of obligation, precision, and delegation, the Rome Statute created a strong prohibition regime against rape in war. 

The fact that rape was thought to be inevitable because of the biological nature of men and women made it virtually impossible, in the eyes of the states, to prevent it, especially in war.  Therefore, not wanting to commit to a prohibition that was bound to be violated by their armed forces, states made sure that they would not be accused of the violation of international laws.  Writing a clear prohibition against rape into international law, when there was a high probability that some of your soldiers will inevitably rape anyway, did not seem attractive to states.

Redefining is an informative book on the evolution of anti-rape laws in the United States.  The author is Edgar E.Robinson Professor in U.S. History at Stanford University.  The book starts with an introduction on the political history of rape, and ends with a chapter on the enduring politics of rape.   The history of rape in the U.S. is a history of discrimination and prejudice.  In 1576, English law set the age of consent at 10 years.  (The age of consent was raised to 14 and more in many U.S. states in the 20th century. Source: the chapter on Raising the Age of consent).

In the South, a white man convicted of raping an underage girl could be sentenced to five to 20 years in prison, while a black man could be castrated or executed.  Chapter 12 on the Anti-Lynching Movement mentions a startling fact: In early 1890s, over 100 blacks were murdered annually for raping white women, whereas white rapists were not visited with similar reprisals.  The anti-lynching movement became popular only in the 20th century.

The author observes that a global movement has convinced the ICC to prosecute sexual and gender violence as war crimes and has called attention to the role of rape in the trafficking of women as involuntary sex workers.  Saying that gender norms cannot be eliminated by fiat or transformed overnight, the author finds several contemporary responses to sexual violence containing disheartening continuities with the past: under-reporting of rape, racial profiling of perpetrators, silencing of sexually abused children, and the victim blaming that attributes assaults to women’s clothing or to their past sexual histories.  The author concludes that contestations over the meaning of sexual violence will continue as long as social inequalities, particularly those based on gender and race, characterize American life.

While the author’s conclusion suggests helplessness,  other countries have found legal solutions for the wider context of unequal power relations, and gender inequality, poverty and vulnerability.  The South African Sexual Offences Act 2007 is not only gender neutral, but recognizes that an imbalance of power between the parties operate to vitiate the consent, so that the victim submits rather than consents.  The legal regime is designed to enable the courts to find coercion in circumstances of rape where there was an intimate relationship, the unequal dynamics of which prevented the complainant from saying no. (See Rethinking Rape Law: International and Comparative Perspectives edited by Clare Mc Glynn and Vanessa E Munro, Routledge, 2010, p.260)

Up Against  is a book about the evolution of Rape Crisis Centres (RCCs) and the fundamental failure of rape law reforms in the U.S.  The author is Assistant Professor of Law and Politics at Drexel University, U.S. and was a direct service provider in the fields of sexual and domestic violence for more than a decade. The book tells a story about the limits of legal mobilisation and questions assumptions about the role of law in struggles for social change. 

The anti-rape movement was a product of the struggle for women’s liberation, which itself had roots in the civil rights and New Left groups of the 1960s.  The critical perspectives of these movements and activists’ personal experiences with state-sanctioned repressive force led many feminist activists to be deeply distrustful of the state, both as a concept and in its concrete manifestations of government institutions and actors.  Despite their distrust, feminists involved with anti-rape activities saw law reform as a necessary tool to seek social justice and cultural change.

The book asks why are some reforms embraced by policymakers while others are resisted? Why  do rape victims have so few rights –either on the books or in practice? How do reforms both challenge and reinforce cultural perceptions of sexual violence? And how do feminists simultaneously recognize the unavoidable role of the state in confronting acts of violence and the state’s complicity in systemic violence against many of its own citizens?

The book finds that the anti-rape movement suffers not from an excess of law; rather, it has been politically and intellectually exsanguinated by the absence of creative legal strategies that could complement other forms of advocacy in addressing problems faced by rape victims and the agencies that serve their needs.  Throughout the book, she tells the story of a social movement that quickly and thoroughly abandoned legal strategies as a tool for transformative change even as it remained enmeshed with legal language, problems, and institutions.

The book explains the difficulty of seeking policies that promote the dignity, equality and right to justice of raped individuals while simultaneously criticizing the impulse of state actors to seek the most punitive, least socially transformative response to sexual victimization, and includes studies which invigorate this difficulty.

The author does not argue that the state cannot or should not intervene in sexual violence.  But she also does not in any way assume that legal entities are prepared or willing to act forcefully and fairly to protect the rights of victims or to renounce sterotypes about sexual assault that result in the unjust suspicion and incarceration of individuals and communities believed to be more likely to commit sex crimes by virtue of their race, ethnicity, or economic status.

The book quotes advocates as saying that they had good laws on the books; the problem was the failure of any mechanisms to hold systems accountable for following those laws.  The book suggests that the willingness to explore broader array of tactics –rather than more legal regulation and intervention- may be a more productive means to hold medical and legal partners to their legal and ethical obligations to rape victims.  The tactics identified in the book include developing new allies, pursuing information regulation rather than legal mandates, and strengthening RCCs as organizations.

Public Secrets is authored by one of our contributors, Pratiksha Baxi, who teaches sociology of law at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.   As I read the book, my attention was quickly drawn to Tukaram v State of Maharashtra (1979)  2 SCC 143) which will surely find a place in the list of worst Judgments delivered by our Supreme Court.   I am surprised to learn that the outcome of the trial in Rao Harnarain v. the State (1958) Cri LJ 564 cited by Bombay High Court which convicted the accused in the Mathura rape case, (who were acquitted by the Supreme Court) is not known.  The book has a separate section on the details of the case, which are shocking.  The High Court relied on this case to distinguish passive submission from consent, which was not accepted by the Supreme Court.

In this review, I am tempted to cite some more revelations from Pratiksha’s book, to woo readers.

* Section 155 (4) of the Indian Evidence Act dealing with past sexual history was deleted through an amendment in 2003. Yet,   I am surprised that there has been no serious challenge to compliance to this deleted provision by stake-holders. (An earlier version of this sentence carried a factual error, which has been subsequently corrected - see comments section - VV)

*While the trial of the case involving the rape of the German tourist in Rajasthan was fast-tracked, another case involving the rape of Bhanwari Devi and her appeal remains buried in the Rajasthan High Court. Another fast tracking of a rape case resulted in acquittal in the appeal stage because the accused was not provided legal help.

*Although the Supreme Court  has held the two-finger test as unconstitutional, it was not banned.

*Compromise in rape cases is illegal. How could the Supreme Court use Article 142(1) route to legitimize it? On February 22, 2011, a Supreme Court Bench comprising Justices M.Katju and Gyan Sudha Mishra mitigated the sentence of three men accused of gangrape 14 years earlier under Section 376(2)(g) IPC.  (Baldev Singh v.State of Punjab, MANU/SC/0148/2011). As Justice Katju continues to attract the media attention for other reasons, I am surprised how this nugget went unnoticed.

Although the book is limited in its focus on the 1983 amendments to the anti-rape legal provisions, the reader is left wondering what are the author’s views on the adequacy of the 2013 amendments.  One does get the hint that the author is against the raising of the age of consent to 18 years while the marital rape provision applying to only girls below 15. 

Readers may find the latest review of the book in The Hindu illuminating.


For those intrigued by the cover, the explanation is available in the Acknowledgments:  The photograph of the carving of the image of justice etched in the pillars of the Bombay High Court at a time when it was inaugurated, was taken by Justice Gautam Patel of the High Court.