Monday, September 29, 2008

Naz Foundation II

Arun, thanks for posting on the Naz case. The Lawyers' Collective website does not have the minutes of the fantastic arguments made on 25th September 2008 by Shyam Divan on behalf of the intervenors 'Voices against 377' a coalition of various groups supporting gay rights, women's rights and child rights. These minutes can be accessed here. Unlike the Naz Foundation's arguments which relied heavily on the public health and HIV dimension of the case, Voices took a more human rights centric approach, insisting on equality, liberty and dignity.

The government's response has been confused, contradictory and has invited admonishment from the bench for its casual approach. Although the government has finally decided to go ahead with the Home Ministry's position by opposing the petition and told the Court to ignore the views of the Health Minister Ramadoss, the latter has again publicly defended the demand to decriminalise homosexual behaviour. I wonder if the collective responsibility of the cabinet extends to taking a unified stand in a court, or can two ministries have opposite stands? Article 75(3) of the constitution only demands collective responsibility to the Lok Sabha. Why this insistence on a 'unified' government stand, which basically has resulted in one view being completely ignored? Why can't both ministries propose their independent views and let the court decide?

Naz Foundation Case: Update and links

Hearings on the Naz Foundation case are currently underway in the Delhi High Court. The May round of hearings formed the basis of prior posts on the blog (available here, here and here).

Here
is an engaging report of the hearings, authored by Vinay Sitapati, that appeared in the Sep 27 issue of the Indian Express. Today's Express carried this editorial on the substantive arguments raised in the hearings.

The website of the Lawyers Collective is continuing with its enormously useful and helpful practice of providing daily updates on the hearings. These reports make for fascinating reading, and reveal that the two judges hearing the case have been making probing enquiries about the specific arguments advanced by the opposing sides. Clearly, the judges are extremely engaged, and are being unusually forthcoming in discussing the parts of the substantive aspects of the law, as well as the details of moulding the relief, that they are having difficulty grappling with. The judges also do not seem constrained in expressing their reactions to arguments that they find unpersuasive in forthright terms.

Hopefully, the content of this absorbing bar-bench exchange will be subjected to deeper analysis as the proceedings continue (I suspect, however that the value of these arguments will increase when the final judgment is issued by the High Court, and we will get to compare their immediate reaction from the bench to oral arguments to those that they finally adopt and endorse). Even a quick glance over the reports indicates that they would make great a great case study for anyone interested in designing sophisticated litigation strategies that grapple both with the substantive content of the applicable law, as well as the technical details of pitching the arguments at the level required to win a victory while being sensitive to the limits of the powers of judges in accepting arguments of substantive law.

Friday, September 26, 2008

Nanavati Report on Godhra tragedy

The much-talked about Nanavati Report on the Godhra tragedy is here. I am yet to read the report, but what I found was that a parallel inquiry held by Justice U.C.Banerjee, set up by the Union Ministry of Railways has been prevented from making its report public by the Gujarat High Court. The report has been submitted to the Railway Board in early 2006, but the High Court has restrained the Central Government from tabling the report in Parliament. This is despite the fact that the the Banerjee committee's interim report presented in 2005 has been tabled in Parliament and has been in the public domain. The Union of India first appealed against the Gujarat High Court's single Judge order staying the tabling of the report, which was later upheld by a Division Bench. The Governemnt appealed against the DB judgment in the Supreme Court, which also rejected the appeal without giving a reasoned judgment. More on this later.

ADDENDUM: My article here compares the Interim report of the Banerjee committee with the Commission Report on the cause of the fire.

Thursday, September 25, 2008

Parties, recognition and their symbols

Political parties, to achieve recognition by the Election Commission, must have considerable following; recognition is granted in the form of exclusive symbols for identification by voters at the time of elections. Therefore, the argument that once a symbol, always a symbol cannot be accepted. A, party losing such a recognition, can be rightly deprived of its symbol, even if voters identify the party with that symbol. Well, these are momentuous decisions from the Supreme Court in the recent case of Subramanian Swamy vs. Election Commission of India, through its Secretary.

The judgment, delivered by Justices Ashok Bhan and V.S.Sirpurkar on September 23 can be accessed from the judis site. Swamy, who heads (or purportedly heads) the Janata Party which ruled the country between 1977 and 1979, among other things, argued that symbols are the intellectual property of the political parties, and cannot be lightly taken away on the specious ground that their vote share has declined over the years. The Court found his arguments attractive, but could not come to his rescue. I am unable to understand the compelling necessity for the EC to deprive Janata Party its symbol. The SC, in fact, left it open whether the EC ought to freeze the symbol, or make it a free symbol, as the issue was not argued in the High court or before the Supreme Court. In this case, Swamy's plea was to freeze it, but the EC made it a free symbol, so that other recognised parties could claim it. No one would seriously believe Swamy if he suggests that the symbol, if reallotted to other parties, would amount to transferring the party's advantage to the new party. But from the EC's point of view, what can be the reason? Dearth of permissible symbols?

I am also unable to understand the relationship between recognition, and the grant of symbols and the need for recognition itself - which formed the basis of this judgment. It is because an unrecognised party contesting for the first time, can sweep the polls, on the basis of a newly allotted common symbol to its candidates. Recognition is required only for retaining a symbol in subsequent elections. If a political party goes into oblivion, and returns to the mainstream after a lull, should it be deprived of its old symbol, on the basis of its interim electoral performance? If there can be no restriction on the number of political parties that can enter an electoral fray, the EC must review its outdated stand on recognition and symbols, especially when smaller parties command huge influence in this coalition era - a plea which Swamy put forward in vain before the Bench.

RAND CORPORATION'S STUDY ON TERRORISM

Given the interest amongst us on how the Government of India ought to respond to terrorism, this study by Rand Corporation throws light on how terrorist groups end. In particular, the authors conclude that policing and intelligence, rather than military force, should form the backbone of U.S. efforts against al Qa'ida. And U.S. policymakers should end the use of the phrase “war on terrorism” since there is no battlefield solution to defeating al Qa'ida. Considering that police investigating the recent blasts in India suspect that the terrorists may have links with al Qa'ida, these suggestions may be of relevance to India. The summary of the report is here.

Wednesday, September 24, 2008

Nationalisation of Large Corporations

An interesting column in the Economic Times by Swaminathan S. Anklesaria Aiyar looks at the biggest government takeovers in history:

“Socialists, like Hugo Chavez in Venezuela or Indira Gandhi in India, are famous for nationalising the biggest corporations. But the US government has taken over three of its biggest corporations within two weeks. Has the US turned socialist?

American right-wingers moan that this is indeed the case. Meanwhile, Indian leftists are stunned at nationalisation in a country they view as pitilessly capitalist.

Two of the nationalised corporations, Fannie May and Freddie Mac, are by far the biggest mortgage lenders in the world, with $5 trillion of mortgages and loans on their books. That's five times India's GDP, to put their size in perspective. The third corporation , AIG, is the biggest insurance company in the world. No nationalisation in professedly socialist countries were ever so big.


The usual procedure in a capitalist welfare state is to let mismanaged companies go bust, penalising the shareholders and managers, and then provide safety nets to those adversely affected. But when corporations are so large that their collapse would endanger the entire financial system, it's sensible even from a capitalist viewpoint to have a government takeover before they collapse . This is a sort of pre-emptive safety net. Moreover, preventing distress wins votes (or at least doesn't lose them), and that's vital in a democracy.”
The column however concludes that this is not similar to nationalisations as they occurred in the socialist contexts:

“The US takeovers, by contrast, are temporary affairs, to be followed by re-privatisation once the crisis is resolved. The corporations will be obliged to sell chunks of their assets to pay off debts and attain stability. They will then be re-privatised. They will emerge greatly shrunken, and perhaps broken into smaller units.

Nationalisation is a misleading word for this process. It is better called forced restructuring by the government, as a pre-emptive safety net. It aims to save citizens from pain, but within a market economy framework.”

History Repeats Itself: Whither Governance?

Much has already been stated in the press about the current financial crisis that had rocked not only the U.S. economy, but also the global financial system, and indeed the magnitude of this crisis will ensure that a lot more will be said in the future. Here we focus on one aspect of the crisis, which is the perceptible failure of corporate governance involving large companies.

In a provocatively titled book The End of History and the Last Man, Francis Fukuyama argues that the advent of Western liberal democracy may signal the end point of mankind’s ideological evolution and the final form of human government. But, of immediate interest to us is a debate in corporate governance that takes a leaf out of Fukuyama’s book (or at least its title to begin with). In an article, The End of History for Corporate Law, two leading U.S. corporate law professors, Hansmann and Kraakman set the framework for the current global corporate governance debate, where their argument is twofold: (1) American corporate governance has reached an optimally efficient endpoint by adopting the shareholder primacy and dispersed shareholding corporate model, and (2) the rest of the world will inevitably follow, resulting in a convergence of corporate governance around the world on the lines of the U.S. model. Although these arguments have been subject to a fair amount of criticism, events that have occurred over the last few days severely expose chinks in the U.S. model of corporate governance, and provide at least some anecdotal evidence that such model is questionable.

The question that is being posed is: where was corporate governance when the CEOs and boards of directors of large and admired U.S. corporations such as Bear Stearns, Lehman Brothers, Freddie Mac, Fannie Mae, Merrill Lynch and AIG saw the performance of their companies plummet, which finally resulted in a massive erosion of value to their shareholders and other stakeholders? Going back into (recent) history, this is indeed not the first time that such questions have been posed. Earlier at the turn of this century, we saw the very same questions being asked when a governance crisis of a slightly different nature occurred with Enron, WorldCom, Tyco and other companies being mired in accounting scandals.

Following this, stern legislative measures were introduced in the U.S. in the form of the Sarbanes-Oxley Act of 2002 that required companies listed in the U.S. to put in place strong systems and practices to enhance corporate governance. However, those measures apparently have been insufficient to deal with the current crisis.

Nell Minow, an influential corporate governance activist and commentator has this to say in a column on the CNN website:

“Despite the post-Enron adoption of the most extensive protections since the New Deal, a survey released this week by Kroll and the Economist Intelligence Unit found that corporate fraud rose 22 percent since last year.

The option back-dating and sub-prime messes show that even the post-Enron Sarbanes-Oxley reform law and expanded enforcement and oversight cannot eliminate the severest threats to our markets and our economy.

This proves that there are limits to structural solutions. Ultimately, markets are smarter and more efficient than regulation. What the government needs to do now is insist on removing obstacles to the efficient operation of market oversight.”
That being said, it must be noted that the Enron cohort of scandals involved some element of fraudulent conduct on the part of the actors involved (that included both insiders such as the board and managers as well as outside gatekeepers such as auditors), while in the current situation there has been no such allegation or finding yet, with the situation arising mostly from misjudgments in valuing complex financial instruments and transactions that these companies either invested in or became involved with.

Justice J.S.Verma on Judicial Appointments

In this interview, Justice J.S. Verma pleads for transparency in judicial appointments, while looking at his majority 1993 judgment in the Advocates-on-record case retrospectively. To a question on the Justice Sen affair, I am reproducing his reply which has not been carried in the published interview:

"Even doubtful appointment should not be made. It is better not to appoint a doubtful person rather than appoint him and regret later. The amount which he got as a Receiver was meant to be deposited in some other account, and he deposited it in his own account, and kept it there for years. Even if he could not use it, he had it, and interest was accruing. So he had the benefit of that amount whether he used it or not. At least, this is a doubtful case, even if he had returned it later unless there is a cogent explanation why he had to deposit it. I can understand if immediately there is no other account, so he deposits the amount, and opens another account to transfer it. So his intention is clear. But if you retain it for years, and you need a court order, well, then, that is not something which a person at that level is expected to do.

"If those who recommended Justice Soumitra Sen’s appointment did not know his antecedents, they lacked due diligence. There may be certain things which are known only to the Executive, but this was something which must have been known, because it was part of the court record. And he was practising. His name must have been recommended by the Chief Justice of that court. SAIL is a PSU. That means there was lack of due diligence, if the Chief Justice did not know. If they knew, and did not act, it was failure. The question of accountability of the collegium now is only academic. You can only prevent these things, and put them on guard."

Justice Soumitra Sen case: Some puzzling questions

While writing on the Soumitra Sen case, I was puzzled by the propriety of the CJI writing to the Prime Minister on the issue. The CJI's request to the PM to initiate the process of removal of Justice Sen based on the in-house Committee report appears to raise certain jurisdictional issues. Under the Judges Inquiry Act 1968, only Parliament through Speaker or the Chairman of Rajya Sabha (or both) can set up a committee of three persons to inquire into the conduct of a Judge, and the committee's report is binding on Parliament. If this committee finds the Judge innocent, then Parliament cannot proceed further. Therefore, can the CJI or the in-house committee usurp the role of this statutory committee? What if this committee finds the Judge innocent or finds the charges against him not serious enough to warrant his removal?

In the V.Ramaswami case too there was an inhouse committee, but this committee did not find prima facie evidence against the Judge, as the probe was already going on when the committee completed its work. Seervai, however, found this improper, as in his view, charges were prima facie true, as the Judge did not reply to the charges. But Seervai found Ramaswami's decision not to subject himself to the jurisdiction of the inhouse committee as legally correct, as the committee had no legal basis.

The present inhouse committee of the Supreme Court draws its legitimacy from the Ravichandran Iyer judgment. But this judgment is only applicable to cases which warranted disciplinary action other than removal from office, which it conceded only Parliament is empowered. In Sen's case, the inhouse committee wanted him to resign, and when he refused, it recommended his removal, a conclusion which the CJI has endorsed in his letter to the PM. Therefore, did the inhouse committee and the CJI exceed the mandate of Ravichandran Iyer judgment of the Supreme Court? Rather than recommend his removal, the inhouse committee could have made its findings and the report public, even if its conclusion points out that the charges against the Judge are so serious that there is no appropriate punishment in the in-house procedure. The CJI, then, would have had no occasion to request the PM to initiate the process of removal, as the report of the inhouse committee, already in the public domain, would have well forced Parliament to take notice of the issue and initiate action.

The inhouse committee report and the CJI's letter, in my view, have led to certain incongruities. By making their position known, the CJI, and the members of the inhouse committee, and the SC collegium which heard Sen have all made themselves ineligible for inclusion in the Inquiry Committee to be constituted by the Speaker or the Chairman. The Inquiry Committee's composition is clear: two of the three members have to be from Judiciary, one from the Supreme Court, the other from the High Courts, and the third an eminent Jurist (usually the former Judge). In the face of public recommendation from the inhouse committee, the collegium and the CJI, will two of the three members of this committee be able to examine the charges against Sen objectively? In other words, will the inhouse committee inspire the confidence of Justice Sen about its impartiality?

Tuesday, September 23, 2008

Transcending Reservations

In this article published by the EPW, I have tried to map certain developments in the official discourse on equality that transcend the traditional debate on reservations. These developments include proposals for enacting anti-discrimination measures, incentivising diversity in the private sector and encouraging corporate social responsibility. I also make a case for restructuring the social justice regulatory framework by instituting a single Equality Commission and merging all the existing group-based commissions.

Sibal on the UPA's approach to tackling terrorism

Today's Indian Express features an op-ed by Kapil Sibal who seeks to respond to the call for reviving POTA, while explaining how the UPA government views the issue of tackling terrorism. Given that Sibal is a Cabinet minister in the current government, the piece also seeks to make political points, and has the flavour that one can expect in such pieces. However, some of the statistics he lists are interesting to the extent that they demonstrate that India was not necessarily better off under the NDA regime when there was both a 'tough' anti-terrorism law (POTA) and a tough talking Home Minister (LK Advani).

In the rest of the piece, Sibal focuses on the need for institutional responses beyond enacting anti-terrorism statutes. This seems quite persuasive, even if one may want to hold judgment on the efficacy of the institutional responses he says have been set up by the UPA government. The thrust of Sibal's argument seems to be in the following lines:

"We need to differentiate between combating terror and dealing with terrorists, which require separate strategies. Dealing with terror requires an institutional response and dealing with terrorists requires a legislative response. This subtle distinction is lost on the BJP."

This may make for good rhetoric, but I am unsure whether this is based on sound logic or good sense. I will readily confess that the "subtle distinction" is lost on me as well. By itself, 'combating terror' doesn't seem significantly different from "dealing with terrorists". Sibal's forced distinction reminded me of the controversies which have surrounded the Bush administration's use of the phrase, "War on Terror."

In the latter half of his piece, Sibal explains that in his conceptualization, 'combating terror' would require providing and buttressing an institutional framework that focuses on improving cooperation among security and intelligence services, and also invests in the scientific equipment and human resources that will be required to monitor and track activities of those suspected of engaging in acts of terrorism. This only drives home the inadequacy of his semantic distinction, because at least some of the strategies he enumerates will require legislative sanctions in order for them to be developed within existing institutional security and intelligence frameworks.

Sibal's overall argument is persuasive, and is also in line with global lessons drawn in the seven years that have passed since 9/11: that enacting harsh anti-terrorism laws which engender fear and hostility in Muslim populations, and are sometimes used to persecute them, is counter-productive in the long run.

Saturday, September 20, 2008

ARC report on combating terrorism

The Report released by the Administrative Reforms Commission on combating terrorism is here. The report requires a detailed analysis. To begin with, it appears it favours a return of POTA, but is sheepish to admit it. On the question of making confessions to police admissible evidence, it says it favours it, but only after comprehensive police reforms are introduced. On bail provisions and period of detention, I don't notice any substantial difference between POTA and the report. It favours a federal agency to combat terrorism, and empowering CBI for the purpose through a special law. The state police is expected to provide logistic support to the CBI for investigating terror crimes. Whether it will be an effective substitute to a federal agency is not clear.

The Report is against the state laws on organised crime, and finds MCOCA as insufficient in its definition of the organised crime, safeguards against abuse, and competence to deal with crimes with inter-state ramifications. But the unravelling of the Delhi blasts has shown that even without a proper mechanism to facilitate inter-State exchange of information, Gujarat police and Delhi Police were able to exchange intelligence, and help investigation. An inter-State agency involves massive efforts in resource mobilisation, and is probably against the federal scheme, let alone the time it may take to create it.

But there is a silver lining. ARC has recommended that there should be a ‘Review Committee’ to examine each registered case within 30 days of registration to assess whether a prima facie case has been made out by the investigative agency. This, the report boasts as a significant safeguard.

Thursday, September 18, 2008

India's first 'referendum'?

Villagers in some villages in Maharashtra are casting votes to state their opinion on an SEZ, and the government has promised to take their verdict 'into account' in making its decision. Issue based referenda, quite common in many democracies, do not find place in our constitutional scheme. This may be a beginning. In fact, on issues like SEZs where a cacophony of discordant political and corporate voices drowns the real desire of the local people, a referendum might solve the problem decisively.

Monday, September 15, 2008

How should liberals respond to terrorism?

Jaipur, Ahmedabad, Bangalore and now Delhi. There seems to be no let up in terrorist violence this year. How should liberals react to the deplorable violence perpetrated by terrorists, in the midst of a clamour for more 'stringent laws'? If the history of anti-terror legislations in India is anything to go by, this stringency will reflect in POTA/TADA-like laws liberals tend to dislike - reverse onus clauses which presume guilt rather than innocence, death penalty, admissible confessions to police officers, privacy violating surveillance. And yet, terrorism itself violates the core liberal value of respect for the individual person.

Pratap Bhanu Mehta, in this interesting article published by the Indian Express yesterday, identifies the following politico-legal solutions:

"So many obvious things to be done, creating cross-party structures to evolve a shared understanding of the problem, better coordination between the Centre and the states, legal reform, more imaginative forms of engagement with different communities to enlist their proactive help in defusing this phenomenon."

Some of these responses may be more effective than the idea that that even more stringent punishments will deter terrorists. Disappointingly, Mehta does not elaborate upon 'legal reform', but it is doubtful that this is a call for a law like POTA (his dislike for POTA was discussed on this blog three years ago in the aftermath of a previous terrorist attack on Delhi! Unfortunately Mehta's older piece linked in that post is not accessible and I couldn't find it on google either.)

In fact, yesterday's article discusses legal responses only marginally. Mehta speaks primarily to the terrorists:

"But what sort of a jihad is this, characterised by rank cowardice and bereft of even the diabolical martyrdom that usually characterises such visions? There is the appeal to a fight for justice. But what sort of conviction is this in the justice of one’s cause that it can be articulated only anonymously, and can speak only the language of bloody revenge? Then there is the narrative of victimisation: portrayals of a community at the receiving end in assorted episodes from Babari Masjid to Gujarat. But this narrative of victimisation seems to become simply a pretext. It has its own self-fulfilling logic, so that everything that happens is simply more grist for the victimhood mill. Every political party, every state organ, every media intervention is portrayed as one vast conspiracy to reduce Muslims to victimhood, as if there are no spaces left to address legitimate grievances. There is something of a subterfuge by which these groups contrive to create an impression that they are nothing but voices of the oppressed. If this is a battle on behalf of Muslims, what sort of a battle is this? For if nothing else, these acts make life more, not less difficult for Indian Muslims."

The important point to note above is the unequivocal rejection of the apologist position sometimes adopted in sections of the Left - one that identifies 'a deeper malaise' as the cause of terrorism. Mehta, of course, accepts 'a deeper malaise' but is clear that it is neither an explanation nor a justification of terrorism. Note, in the following quote, that he identifies the sense of (real or perceived) 'victimisation' in all communities, implying that the solution cannot be community specific. He poses his question to the state thus:

"The disquieting challenge is going to be this. While there may be widespread revulsion against terrorism, what will be the form of politics that will overcome the sense of victimisation that is now creeping in on all communities? How will we break the vicious circle the Indian Mujahedeen have identified: that any action taken by the state, investigation or punishment will be taken as further evidence of victimisation? Can the state overcome the accusations from all sides that it is partisan in the prosecution of its core duties? It may turn out that our biggest vulnerability is not communalism; it is a state structure now floundering for credibility, legitimacy and effectiveness."

He goes on to commend the frustration of the main goal of recent terrorist attacks - to spark a backlash:

"The silver lining is that so far the backlash this dare intends to provoke has not occurred. It is clear that these groups do not appear to have an interest in justice; they have an interest in polarisation. In so far as this polarisation does not become visible, at least something of a resistance to terrorism is being offered."

Finally, Mehta laments that 'No state has more experience of handling terrorism than India, yet there seems to have been no institutional learning, reorganisation or innovation in dealing with it.'

I think it is a very well-written article, but it left the lawyer in me dissatisfied (it seems that his inaccessible older article on terrorism addressed some of the issues I am about to raise). I know I don't want the return of POTA. I believe that majority and minority intolerance feed on each other and every jihadi terrorist attack strengthens the Hindu Right (and vice versa) - so, I desperately want this government to 'do something'. But mere appearances will not be enough. I want the state to do everything it can to prevent terrorist attacks and prosecute the perpetrators, without violating civil liberties. How does one achieve all of these goals? Can intelligence agencies be restructured to be more effective? Can the problem of centre-state co-ordination be solved by institutional reforms? How does one protect a community from harrassment and innocent individuals from becoming scapegoats when a case is 'cracked'? Does a solution really lie in addressing the 'deeper malaise' through fairness-enhancing measures like anti-discrimination laws? Then, what does one do in the short term, if anything? Are POTA-like laws even effective against terrorism, or are they just for keeping up appearances? Has there been any criminological study to examine this?

Perhaps terrorism needs a political and societal response rather than a legal one, and a belief that laws (stringent or otherwise) will solve the problem itself is misplaced. But even then, what shape should a political response take? How can a non-partisan understanding on terrorism come about? What is the role of political leadership in the immediate aftermath of a terrorist attack? I hope the Prime Minister is asking himself similar questions.

Friday, September 12, 2008

OCCASIONAL DIGEST

In pursuit of our efforts to provide links to primary and secondary sources for discussing contemporary issues and controversies, here are some which we may find useful in writing our posts and comments:

1. The Chief Justice of India's letter to the Prime Minister requesting impeachment of Justice Soumitra Sen. (Thanks to The Hindu website)

2. Text of PM's address while releasing Justice Bhagwati's book.

3. Article by Krishna Iyer on Jusice, Justices, and Justicing.

4. Article on changes proposed in Judges Inquiry Bill, 2006.

Wednesday, September 10, 2008

Guest post - Constitutionality of reverse onus clauses

This is a guest post from Karan Lahiri, a final year student at National Law School, Bangalore, on a recent judgment on the constitutionality of reverse onus clauses:

'Noor Aga v. State of Punjab examines the ‘reverse burden’ of proof in Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The interesting portions of this judgment deal with the constitutionality of this ‘reverse burden’. Though this has been upheld on previous occasions by the Supreme Court and certainly could not have been struck down in this matter by the division bench consisting of Justice Sinha and Justice Sirpurkar, I feel that this is the first matter which has really placed ‘reverse burden’ under a constitutional lens.

In a nutshell, the Appellant was an Afghan national from whom a quantity of heroin was allegedly recovered at Raja Sansi Airport, Amritsar, apparently concealed in the secret compartment of a carton containing grapes. The reverse burden placed on him was due to Sections 35 and 54 of the NDPS Act, as mentioned earlier. Section 35 states:-

“In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.”

Section 54 states:-
“In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of –
(a) any narcotic drug or psychotropic substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or
d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily.”
What is significant in this judgment is that it speaks of presumption of innocence as a human right. While Justice Sinha invokes Article14(2) of the Intentional Convention on Civil and Political Rights, it is initially unclear as to how he plans to place this right in the context of the Constitution of India generally, as also how he plans to test the NDPS Act on the basis of this right in particular. The first important hint in this regard is the statement that merely placing the burden of proof on the accused would not render a provision doing so unconstitutional. Therefore, it is clear that there must be some counterweight when the burden is placed on the accused. The judgment states:-

“A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.”

From this statement, one gets a sense that Justice Sinha seeks to scrutinize the proceedings under a law providing for a reverse burden more strictly than he seeks to scrutinize the law itself, especially since the judgment goes on to state that a stringent law requires stringent compliance with procedure. It seems that this insistence stems from the right to fair trial, given that the following passage from the matter of South Africa in State v. Basson 2004, (6) BCLR 620 (CC), a war crimes case before the constitutional court of South Africa, has been cited with approval in the judgment:-

“When allegations of such serious nature are at issue, and where the exemplary value of constitutionalism as against lawlessness is the very issue at stake, it is particularly important that the judicial and prosecutorial functions be undertaken with rigorous and principled respect for basic constitutional rights. The effective prosecution of war crimes and the rights of the accused to a fair trial are not antagonistic concepts. On the contrary, both stem from the same constitutional and humanitarian foundation, namely the need to uphold the rule of law and the basic principles of human dignity, equality and freedom..”

Here, it becomes clearer as to how reverse burden provisions are to be tested in the context of constitutional/human rights, given that the right to fair trial and human dignity are invoked to justify rigorous compliance with procedure. Enforcement of law and protection of citizen from the operation of injustice in the hands of the law enforcement machinery are the two factors to be balance according to Justice Sinha, and we finally discover the counterweight to a provision stipulating reverse burden where the judgment states that “[the] constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens.”

Put simply, this case acknowledges ‘presumption of innocence’ as a human right, but goes on to state that “limited inroads” might be made with respect to this right. However, when such inroads are made in the form of a reverse burden placed on the accused, such a provision must be read in light of Articles 14 and 21 of the Constitution insofar as they contain within them the right of fair trial and human dignity. This reading, apart from testing the law itself, is more useful in testing all prosecutions carried out under such law. The stricter the offence and the more stringent the statute, the more searching is the scrutiny involved.

As a final word, I would like to point out an issue of hard criminal law in this case. This was a case where various discrepancies had crept in to the way evidence had been adduced by the customs authorities (to mention just a few, the bulk quantity of heroin, the carton as also the samples had gone missing!) and, taking a cumulative view of the same, the bench ruled in favour of the accused. What is of interest is that this is perhaps the first case on the NDPS Act I have read (not that I’ve read all that many) which clearly points out the obvious fact that before the reverse burden on the accused is placed under Section 54 of the Act, the burden is on the prosecution to prove the element of “possession” beyond reasonable doubt. The judgment rules that the prosecution, in this case, did not satisfy this, especially in light of the fact that the stringency of the statute and the seriousness of the alleged offence heightened the level of scrutiny and made this particular burden on the prosecution more onerous.'

Tackling corruption in the higher judiciary: Interesting developments

Almost from the time of its inception, contributors to this blog have focused on the issue of corruption in the higher judiciary at regular intervals. This post from three years ago seems particularly ironic now, given its focus on the claim of the erstwhile Chief Justice of India, YK Sabharwal that corruption in the higher judiciary was "very, very minimal."

Today's papers carry items which are a sobering reminder of just how off the mark this statement was when it was made back in 2005, and how things may have worsened (or simply have become more amenable to public attention) since. Two days ago, on Sep 08, the CJI recommended that Justice S. Sen, a sitting judge of the High Court of Calcutta be impeached (Here is the link to the story in the Indian Express). Today's issue of the Express features a column by TR Andhyarujina that provides some historical and legal context.

It appears that this is only the tip of the iceberg. This story from today's issue of The Telegraph details how CJI Balakrishnan has allowed the CBI to question two judges of the High Court of Punjab on corruption related charges that have been hogging the headlines for some time now. The closing lines of the item remind us that the CJI is still to act on the Ghaziabad scam which has also been in the limelight.

While CJI Balakrishnan is to be lauded for taking positive action on these cases, which will no doubt be closely followed by the media, it remains to be seen if the judiciary will take further and stricter measures internally to address what critics have long been complaining is a serious crisis of great magnitude within the judiciary.

In the coming weeks, as the impeachment motion against Justice Soumitra Sen proceeds, his individual actions will come under close scrutiny. One hopes that the debate will also extend to the institution of the judiciary more generally. This will start a long-delayed conversation on an ailment in a stellar national institution that must be addressed urgently.

Conversion and Christianity

Are propagation and conversion part of Christianity? Even though the Supreme Court's judgment in the Rev.Stainslaus case laid down that Article 25 does not include the right to convert, it appeared to me after reading Seervai, that the Orissa High Court judgment upholding conversion as part of Christianity, which was challenged in Stainslaus, is still the valid law, as Stainslaus did not specifically address the issue. Here is my article on the issue.