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? 

Tuesday, February 03, 2015

Center for Law and Policy Research -- Call for Research Associates

Guest Post on behalf of Jayna Kothari

CLPR invites applications for Research Associates at Bangalore.  CLPR is a non-partisan and not-for-profit organization engaged in law and policy research as well as impact litigation in the public interest on a variety of legal issues such as disability discrimination, social rights protection including the right to education, health and livelihood, consumer rights, environment and biodiversity, the rights of children and women’s rights among others.   We are looking for lawyers with initiative, vision, and a strong commitment to the struggle for social justice.

The Research Associate will work primarily on a project on law relating to public health but must be ready to engage with other on-going research in the field of disability, IP and constitutional social rights. The associate will develop new research projects for the centre. Other duties will include writing blog posts and policy briefs and representing CLPR in various fora, including before community groups, legislators and state agencies;

Candidates must have the following qualifications:

   A B.A.LL.B degree from a reputed university. We prefer candidates with a Master’s degree in law with a significant research component from a top tier university
   Strong academic background;
   Excellent research and writing skills;
   Demonstrated commitment to public interest law

Please submit the following documents as one attachment: a cover letter, resume, one writing sample and two references to:  jayna.kothari@clpr.org.in.


Monday, February 02, 2015

Supreme Court Law Clerks

A paper I wrote on the institution of the law clerkship on the Supreme Court of India was published in the International Journal of the Legal Profession, and is now available for free online. A draft of the paper had earlier been posted on SSRN as part of the Harvard Law School Program on the Legal Profession Research Paper Series. An earlier post about this on LAOT is available here. Here's an abstract of the paper:

"Since the 1990s, judges of the Supreme Court of India have hired law clerks to help them perform some of their routine tasks. However, while clerkships on the U.S. Supreme Court are considered very prestigious and are extensively written about, clerkships on India's Supreme Court are considered to be of significantly lower value by the local legal profession and teaching market in India. Instead, ironically, clerkships on the Supreme Court of India are often pursued by students interested in getting an advanced law degree (usually an LL.M.) at a U.S. law school. Relying on interviews conducted with law clerks and interns who have served on the Supreme Court of India, and using India as a case study, this paper argues that ambitious Indian law students are adopting strategies to “Americanize” themselves in order to culturally arbitrage U.S. law schools' misunderstandings of the global legal profession."

Interestingly, there's now a detailed "scheme" for hiring law clerks at the Supreme Court. 

Sunday, February 01, 2015

Contemporary Issues in Indian Public Law: Transnational Perspectives

The Faculty of Law, University of Oxford, Melbourne Law School, University of Melbourne and National Law University, Delhi invite you to a conference on ‘Contemporary Issues in Indian Public Law: Transnational Perspectives’.

The conference will be held on the 12th of April 2015 at National Law University, Delhi.

To attend the conference, please register here

There is no registration fee for Indian residents, but registration is essential. There is a conference registration fee of £20 for international participants. Please ensure that you select the relevant category when registering. Upon registration, further details relating to the event will be emailed to you closer to the time.

If you have any queries or require any help or advice regarding visa requirements or hotel bookings, please email Joanna Simon on joanna.simon@seh.ox.ac.uk 



This conference is an International Association of Constitutional Law Roundtable





Programme of Events



Transnational Engagement with the Indian Constitution

Cheryl Saunders (Melbourne), Constitutional Comparison between India and Australia

Nick Bamforth (Oxford), Comparative Authority in Constitutional Litigation

Paul Craig (Oxford), Meta-Constitutional Narratives: Some Comparative Thoughts

Adrienne Stone (Melbourne), attendance tbc


Separation of Powers

Nick Barber (Oxford), The Basic Structure Doctrine

Sudhir Krishnaswamy (Azim Premji), Directive Principles: Institutional Questions

Alison Young (Oxford), Inter-institutional Dialogue


Human Rights

Anup Surendranath (NLU), The Death Penalty

Pip Nicholson (Melbourne), The Death Penalty


Carolyn Evans (Melbourne), Religious Freedom and Conversion Laws

DAKSH'S RULE OF LAW PROJECT

I am delighted to announce that we have started a new project tentatively titled "The Rule of Law Project" at DAKSH. The initial focus is on collecting and organising data regarding the functioning of the judiciary in India. The lack of well maintained and/or organised information regarding judicial functioning has been highlighted by the Law Commission many times, most recently in its 245th report. This lack of correct data has been, according to many, one of the main reasons why judicial delays have not been studied properly in India. And, lack of good research has meant that sustained and meaningful institutional efforts to address judicial delays have not been initiated. We hope that the Rule of Law project will fill this gap.

We started work in November and have managed to build a database of approximately 5 lakh cases covering 7 High Courts. By the end of 2015, the database will cover all the pending cases in the Supreme Court and High Courts and around 5-10 randomly selected district courts across the country. This will mean that we have details of at least 50 lakh cases by end of 2015. This database will help us measure the life cycle of a case accurately. In the next stage, we are also planning to link the database with the orders passed each time the case has come up (to the extent such orders are available online). We should then be able to properly identify reasons for delay and other related issues.

My colleagues who are working on the project have regularly written about the process of building the database and the issues they have come across on the DAKSH blog. It makes an interesting read even for practicing lawyers who believe they know everything about the Indian courts!

The database will be hosted on a new website and is scheduled for a formal launch on February 7, 2015 in Bangalore by Shri DV Sadananda Gowda, the Union Law Minister.

We welcome feedback, criticism and help on this project!

Friday, January 30, 2015

Cricket and the Law: Analysis of the BCCI case

It has been some time since this blog featured analysis of the legal aspects of the regulation of cricket.  (See here for some previous posts by V. Venkatesan in 2008, which might also induce some nostalgia in older readers of the blog). 

Today's Indian Express has a succinct op-ed by Abhishek Tripathi which sets out some of the background context of the recent decision of the Indian Supreme Court on the powers of the BCCI.  The case also has implications for regulation more generally and it will be interesting to see how this case is applied to regulatory contexts other than cricket in the future. 

Wednesday, January 28, 2015

The Restoration of Chief Justice

In a dramatic move the newly elected President of Sri Lanak asked deposed Chief Justice Shirani Bandarakanayake to "resume" her duties as Chief Justice of Sri Lanka. Chief Justice Bandaranayake had been removed following the recommendations of a parliamentary committee in 2011 following several adverse decisions against then President Rajapakse's government. Officially, Chief Justice Bandaranayake and her husband were charged with corruption and cases were instituted against them.

Interestingly, the President has informed current Chief Justice Mohan Peiris that since the removal of Justice Bandaranayake was legally void, their was no vacancy for Chief Justice and his subsequent appointment was also void.

Chief Justice Bandaranayake will resign a day after she resumes office, thereby clearing her name and protecting the integrity of the higher judiciary. Following the re-appointment of Chief Justice Iftikar Choudhary in Pakistan, this is the second case of a dismissed chief justice being restored after a political struggle. 

Monday, January 26, 2015

Website on Death Penalty in India

The Death Penalty Research Project at National Law University, Delhi has launched a website on the death penalty in India -- www.deathpenaltyindia.com

The site aims to host extensive and comprehensive resources on the death penalty in India. We hope that the site in its current form is a decent start and that we will add a lot more in the coming months.

In the interest of full disclosure, the project was a proposal I made to the University, which in turn has provided extensive financial and logistical support.

The project has interviewed all prisoners sentenced to death in India, tracked and interviewed their families and also met their trail court defense lawyers. The idea is to understand the socio-economic profile of people sentenced to death in India and also get a sense of their experience with the criminal justice system. While the report of our research is in the final stages, our work is meant to be a foundation that others can build on. A lot remains to be understood about the administration of death penalty in India and we do hope that our empirical experience can contribute to future efforts. We hope to publish the report by March 2015.

As far as the website is concerned, a few particular links that might be of interest to readers:

Judges Discourse: http://www.deathpenaltyindia.com/judiciary/
Current Prisoner Information (State-wise):
http://www.deathpenaltyindia.com/death-row-prisoner-information/
Timeline on the Death Penalty in India:
http://www.deathpenaltyindia.com/death-penalty-in-india/
Student Researcher Narratives from Fieldwork:
http://www.deathpenaltyindia.com/project-resources/
Executions since Independence:
http://www.deathpenaltyindia.com/wp-content/uploads/2014/12/PrisonersExecutedinIndiasince-1947.pdf
Some Prominent Executions: http://www.deathpenaltyindia.com/executions/