Monday, August 31, 2009

Symbolic Laws, Signalling Effects

Guest Blogger

Kalyani Ramnath

I followed the debate on honour killings with interest. Is ‘effective’ social reform only about higher conviction rates or is it also about community understandings? Much of the skepticism surrounding the enactment of a special legislation on honour killings is because of the former rather than the latter. Measuring legal reform and social reform with the same yardstick appears unjust to both.

Tushnet and Yackle, in a study of statutory reform in the United States (available here) look at three kinds of statutes – expressive, instrumental and symbolic. Instrumental statutes do not attempt a changing of societal values, but alter the importance that is attached to it. Expressive statutes attempt to change societal values as well as the benefits attached to holding that particular viewpoint. Symbolic statutes attempt to replace existing values and preferences or impose the values or preferences of a particular interest group on the other. In the case of symbolic statutes, what is evident is that the emphasis is not on deterrence but on the signals sent out to the community. It is the perceived nature of the crime that changes.

For example, the understanding that sati is ‘too dangerous’ a practice to abet. Symbolic statutes are not to be considered symbolic post facto, nor is the difficulty in implementation / ease of achieving convictions ever a reason to not enact them. A more useful critique of such measures would arise if this was taken into account. If a statute is enacted with the understanding that its role is primarily symbolic, then perhaps greater attention would be paid to awareness raising than to dealing straight off with institutional design or problems of implementation. If this is not the case then perhaps statutory reform will remain the bastion of middle class thinking rather than that of any impact on the larger community, whether it be in terms of implementation or change in perceptions.

The usual objection to enactment of symbolic statutes is that it erodes the credibility of the legal system. But as mentioned earlier, is law only ‘effective’ if it achieves higher conviction rates? Perhaps too little emphasis is placed on the initial steps following law reform and particularly that relating to perceptions. Malatras identifies four ways in which a social movement may relate towards the law – using the law as strategy, law as liberation, law as constraint and using the law as a symbol.[1] This could be extended to any attempt to bring about statutory reform, even if it is not through the medium of a social movement, however defined.

It is sometimes argued that in order for a law to be effective, it has to be in consonance with established social and cultural understandings. However, if the very purpose of a law is to change those understandings, is the answer then not to bring about statutory reform? Another argument is that laws should only be enacted if the majority find it acceptable. In his article (Atul Setalvad, ‘Paper Laws’, EPW (1988), Setalvad focuses on the lack of a proper enforcement machinery in the case of the Prevention of Food Adulteration Act and the Dowry Prohibition Act, both of which have therefore remained ‘paper laws’. (On the other hand see this article by Neeraj Hatekar et al, ‘Legislating Social Change: The Strange Case of the Sarda Act’, EPW 2007 for evidence of how community understandings of marriageable ages changed with the legislation) Laws play different roles in the above two cases - in the first case, to use the Malatras typology, the law is constraint and in the second, the law is a symbol or is employed as a strategy.

To get back to the question of statutory reform in India, there seems to be an increasing use of law for these many purposes outlined above. One of the more talked about statutory reform is in the area of domestic violence. The Protection of Women from Domestic Violence, 2005 is similarly considered to be a more obvious example of breaking the silence on 'private' violence and abuse. For one, the Act acknowledges the existence of relationships that are not legally ‘marriage’. Further, it gives the woman a right in the shared household.

What is disappointing however, is the Supreme Court’s response to the Act. In S.R. Batra v Taruna Batra[2], it undermined the statutory right to reside in the shared household by deciding that the right is only available to a woman in a household owned by the husband and not in the household owned by the in laws, even though it has been the shared household of the woman. The Court expresses concern that this might well result in the infringement of the rights of the women, but nevertheless attributes it to ‘clumsy drafting’.[3] This effectively takes joint family households out of the picture.

To take another example, The Juvenile Justice Care and Protection of Children Act, 2000 is considered revolutionary in its use of child-friendly terminology. However, experience indicates that a lot of the procedures followed and the environment of the "dispute" resolution body i.e. the Juvenile Justice Board, is quite to the contrary. The Supreme Court in interpreting the JJA has however, managed to parallel existing understandings of juvenile justice – for example, that the child has a right to bail, that presumption of age must be in favour of a child and so on. Little or no litigation has occurred on any other point. In many cases, though, the lack of a best practices guide and effective subordinate rule making, the Act remains underutilised.

Tushnet and Yackle in their study also point to the fact that the politics between the legislature and judiciary can also result in the law being unenforced or narrowing the scope of statutes to reflect existing legal positions. This seems to be true in the case of statutes, such as the DV Act. Is this part of the judiciary’s effort to create a ‘seamless’ web of sorts? In this case as well, the signalling effect of the statute assumes importance.

In cases where the call for statutory reform has come from the judiciary such as a law on sexual harassment, the legislature remains largely indifferent, perhaps because there is no political mileage to be gained. Hence, predictably, there is scope for judicial understandings to be placed at a premium. This appears to be problematic for evident reasons. For these reasons, I would think that the proposed legal measures against honour killings is probably less about formalistic legal positions than it is about community understandings.

[1] Jim Malatras, “Legal Consciousness of Social Movements : Framing the Strategies for Mobilizing the Law”, Paper presented at the Annual Meeting of the Law and Society Association, 2005.
[2] AIR 2007 SC 1118.
[3] Batra, paragraph 23.

[Kalyani Ramnath graduated from National Law School of India University, Bangalore and is currently studying at the Yale Law School]

Sunday, August 30, 2009

Conversions and Bigamy

The 227th Report of the Law Commission of India on “Preventing Bigamy Via Conversion to Islam: A Proposal for giving Statutory Effect to Supreme Court Rulings” was published earlier this month. The report suggests amendments to the Hindu Marriage Act, the Special Marriage Act, the Indian Christian Marriage Act, the Dissolution of Muslim Marriages Act and the Parsee Marriage and Divorce Act which would provide that “a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law”. The recommendation challenges a well established principle dating back to the Privy Council that the “no court can test of gauge the sincerity of religious belief” i.e enquire into the motives behind a conversion.


It is a little problematic to see the quesiton of bigamy only in terms of conversion to Islam. As media reports suggest that the "conversion" for the sake of marriage is done by relatively wealthy urban men who want to escape the prosecution from bigamy or live in a milieu where the state's recognition of marriage . In a lot of India, polygamy is still not seen as against a social milieu, therefore there is no incentive for a person to "convert" to gain a cloak to legality. As a recent study shows, in South India polygamy is more common amongst Hindus than Muslims. By framing the problem of bigamy through the question of conversions, the report seems to imply that Muslim personal law is to blame for this problem.


Javed Anand, President of Muslims for Secular Democracy and editor of Communalism Combat ,takes the Commission to task for the last paragraph of the report, ie “Although we fully agree with the fact that traditional understanding of the Muslim law on bigamy is gravely faulty and conflicts with the true Islamic law in letter and spirit, to keep our recommendations away from any unhealthy controversy we are not recommending any change in this regard in Muslim law.” Anand systematically documents how Muslim women in India have fewer rights under Islamic law than women in other Islamic states. As he points out

Algeria, Indonesia and Tunisia do not recognize talaq (a husband’s unilateral right to end a marriage). Divorce is possible only through the courts. In Morocco, talaq is subject to strict judicial control. In Jordan, Lebanon, Malaysia and Syria you have to apply for permission to divorce. Besides, in most of these countries, a reconciliation attempt is mandatory prior to divorce. In Iran, two witnesses are essential for a talaq. Only in India does the Muslim male enjoy the unquestioned right of instant (triple) talaq. Whether sober or dead drunk, in a fit of anger or on a mere whim, he can do so when he likes, how he likes: orally face-to-face, letter, telegram, telephone, fax, e-mail or SMS.

He charges Dr. Tahir Mahmood, the only permanent member of the Law Commission (also former Chairperson of the National Commission of Minorities and Dean of the Delhi Law Faculty) for failing in his duty. Muslims for Secular Democracy, have been arguing that media and the government treats Muslims as a monolithic block and privileges "the hotheads and muckrakers, while moderate, liberal voices find little mention".

A point Anand misses is that the only effective statutory change that the report suggests pertains to Muslim family law. The report intends to give statutory effect to a position laid down by the Supreme Court in Sarla Mudgal (1995) and reaffirmed in Lily Thomas (2000). As a decision of the Supreme Court is law of the land, most of the proposed amendments appear superfluous since there is nothing under the Hindu, Parsee, Christian or Special Marriage Acts which cannot be harmoniously construed with the judgments.

The amendment which might prove contentious is that the Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 – saying that this Section would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith – be deleted. As I have mapped out elsewhere, the DMMA was a revolutionary piece of social legislation enacted due to the efforts of a coalition of Muslim ulama, nationalist leaders and women’s groups which gave Muslim women rights to divorce which were significantly greater than those enjoyed by Hindu, Christian, Parsee and even British women of the period. Since Hanafi law (followed by most Muslims in India) provided very few possibilities for a wife to dissolve her marriage at her own imitative, the legislatures and ulama borrowed principles from Maliki law (which was largely limited to Algeria, Morocco and parts of Egypt) and gave it statutory force in India.

Section 4 and its proviso have a particularly interesting history. A major reason for its support from the ulama was s.4 which provided that following this legislation, a Muslim woman could not dissolve her marriage by the fact of apostasy, thus calming the fear that Muslim women might seek to convert to escape bad marriages. Again, the irony being that ulamas had used the act of a secular legislature was being used to reverse what had been settled consensus over a rule of Shariat law. However, the more conservative Hindu members of the legislature stated that this clause prevented the reconversion of women who had been abducted/enticed/forcibly converted into Islam. In order to reach a compromise, the Select Committee carved out an exception to the clause, which now provided that ‘it would not apply to a woman converted to Islam from some faith who re-embraces her former faith’. Soon after, Bhai Parmanand, President of the Hindu Mahasabha, was thanked profusely by Quazi Ahemd Kazmi, the author of the Bill, for his crucial support. Some scholars have suggested that the Bill, like a lot of social reform legislation, was a product of a communities need to control its women. While women’s rights to dissolve their marriages through conversion were blocked by statute in 1939 and by judicial decisions in the 1940s, men’s rights to convert and have second marriages was only challenged in 1995. The effect of this amendment would in effect destroy the comprise (questionable though it may be) which led to the enactment of this quite revolutionary piece of legislation in the first place.

More disturbingly, the report, and the preceding Supreme Court judgments express little ‘sympathy’ for the position of the second wife. Refusing to recognize the second marriage often leaves the other woman vulnerable and without rights.

Housewife's Economic Contribution to the Household

Earlier this month, The Hindu ran a piece on a case decided by the Madras High Court, where the Court called for a re-look at how the death of a housewife is compensated in accident claim cases under the Motor Vehicles Act. The case is National Insurance Co. v. Deepika, and can be accessed here. Delivered by Justice Prabha Sridevan ( of the Novartis Case fame), the judgment refers to India's obligations under CEDAW to take into account the economic value of the unremunerated domestic work of women , since this plays a significant role in the development of the family as well as the country. The court also cites examples from other countries (and from an "exploration on the internet") to show how a housewife's economic contribution to the home is/can be, calculated. Currently, the Second Schedule to the Motor Vehicles Act provides that the income of a non-earning spouse is to be calculated as one third of the earning spouse. However, the Court opines that, "[o]ne cannot ignore or forget that the homemaker, by applying herself to the tasks at home, liberates her spouse to devote his energy and time and attention to tasks that augment his income and generate property for the family." In light of this, the Court is of the opinion that "while the income of the spouse may be generally adopted as per the Second Schedule, the time has come to scientifically assess the value of the unpaid homemaker both in accident claims and in division of matrimonial property."
The case has highlighted, perhaps for the first time in the annals of the Indian judiciary, how "the high prevelence of the stereotypical attitudes with regard to the role of women" denies them full economic equality, and consequent financial security and liberty. As the Court itself notes, understanding the economic contribution of women to the household also has immense potential in re-shaping our understanding of division of matrimonial property. In an area where courts, as well as popular perception, regard the granting of alimony as a matter more akin to charity and for the purposes of the maintenance of the woman, rather then her right by virtue of her contribution towards the generation of family property, if taken to its logical conclusion, the ideas propounded in the case can turn matrimonial law in India on its head-and for the better.

Saturday, August 29, 2009

Supreme Court cites NLS Journal

In Action Committee, Un-Aided Pvt. Schools v. Director of Education, Delhi (07.08.2009; MANU/SC/1458/2009), the Indian Supreme Court through Justice S.B. Sinha cited an article in the National Law School of India Review:

It is also of some interest to note that opinions in the academic field are being expressed that res extra commercium is an expression wrongly used in the last sixty years by this Court and other High Courts. No activity can be called "res extra commercium". It is either permitted or not. Having regard to its conceptual roots to Roman law, it would mean only those things which are not incapable of being ownership and, thus, any matter which is res extra commercium were things incapable of ownership be vests in res in commercio. [See Arvind Datar, "Privilege, Police Power and Res Extra Commercium - Glaring Conceptual Errors" 21(1) National Law School of India Review 133 (2009)]

Hopefully this development will prompt judges in the higher judiciary to pay closer attention to academic literature and promote the several student journals that have been recently established by law schools throughout India. It should also hopefully encourage academics to publish in these journals.

I am grateful to Niranjan V for informing me of this case.

Dishonourable killings

Pratiksha Baxi's thought-provoking comment on my earlier post 'New Law on Honour Killing?' deserves notice, hence I am posting it separately here. As she outlines, any legislative measure to tackle violence against couples in the name of family honour must be multi-dimensional. It will have to look at the laws against rape, kidnap, theft etc. It will have to amend the Special Marriage Act, something this blog has discussed in the past [See also here and here]. It will have to deal with the police force, which is often itself culpable. One hopes that the nuances Pratiksha points out are noticed, and any response is educated rather than knee-jerk. Her comment is pasted below:

There has been a trenchant critique of the term “honour crimes”, which was first articulated by feminists in Pakistan, when they coined the slogan “there is no honour in killing”. The critique was that the phrase “honour crimes” describes the crime from the point of view of the perpetrator. In India, scholars such as Uma Chakravarti have argued that we must look at these crimes as a form of custodial violence in the domain of intimacy. In Britain, black feminists describe honour crimes as a form of domestic violence to resist the racism that inevitably followed the ascriptions of violence to entire cultures. This construction of honour crimes as naturally inhabiting certain national patriarchies as versus others is found in a judgment by Justice Katju who says:
The barbaric practice of “honour killings” that is, killing of young women by their relatives or caste or community members for bringing dishonour to the family or caste or community by marrying or wanting to marry man of another caste, community or whom the family disapproves of, is frequently reported to take place in Pakistan which is a State based on feudal and communal ideology. However, this Court has been shocked to note that in our country also, which boasts of being a secular and liberal country ‘honour killings’ have been taking place from time to time, and what is deeply disturbing is that the police and other authorities do not seem to take steps to check these disgraceful and barbaric acts. In fact such ‘honour killings’, far from being honourable are nothing but pre meditated murder (Sujit Kumar and others v State of UP 2002 (45) ACC 79 at 80).
Even the state discourses on “honour killings” in countries like Britain name the violence as “so-called honour crimes”. The first problem therefore is of naming.

The issue is not exhausted by caste panchayat’s murder machinery. Once we begin to look at the issue different realms of law are evoked in the domain of family, custom, community, state and international law. For instance, many scholars such as Prem Chowdhury, Uma Chakravarti and Perveez Mody have pointed out that the laws on kidnapping and abduction are used with impunity against adult couples who elope against the wishes of their families. The law on rape has also been used by parents in such cases. In such cases, the police hunt the couple down. The woman is forced to break off her relationship or marriage. If she does not agree, she may face criminal charges of theft from her parents and the man is arrested on charges of abduction, kidnapping and/or rape. The woman is often sent to a state run home or as I have documented in my doctoral research to jail on charges of theft and abating her own rape and abduction. The situation gets even more complicated when the girl is a minor. The reality is that there is a cultural context is permissive of child marriages but punitive towards young people who marry of choice.

The crux of the matter is that the right to marry [if, when and whom] is denied in customary contexts, made horribly difficult by state law and defied in diasporic contexts. In Britain South Asian families hire bounty hunters to track down couples. It is highly difficult to rescue a British national from the interiors of India or Pakistan where she is forced to marry someone from the community against her wishes. It is difficult to find evidence against the natal family. If there is a move to legislate this issue, there should be a wide scale and informed discussion on how to amend the law and lessons be learnt from countries such as Britain and Pakistan. The state must allocate resources for the protection and rehabilitation of couples on the run. Moreover, we must not forget that the Indian state often behaves like a bounty hunter and mimes caste panchayats – hence, the problem is how to bring justice to the context of legal pluralism which subjects women to competing forms of subjection.

SC's order on Suchitra Srivastava v. Chandigarh Administration

Supreme Court has delivered its reasoned order on why the mentally retarded woman must be allowed to continue her pregnancy. The order can be accessed here.. I am reproducing the crucial passages in the order here:

Even if the said woman was assumed to be mentally incapable of making an informed decision, what are the appropriate standards for a Court to exercise`Parens Patriae' jurisdiction? If the intent was to ascertain the `best interests' of the woman in question, it is our considered opinion that the direction for termination of pregnancy did not serve that objective. Of special importance is the fact that at the time of hearing, the woman had already been pregnant for more than 19 weeks and there is a medico-legal consensus that a late-term abortion can endanger the health of the woman who undergoes the same.

Even though the Expert Body's findings were in favour of continuation of the pregnancy, the High Court decided to direct the termination of the same in its order dated 17.7.2009. We disagree with this conclusion since the victim had clearly expressed her willingness to bear a child. Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter. We have adopted this position since the applicable statute clearly contemplates that even a woman who is found to be `mentally retarded' should give her consent for the termination of a pregnancy. In this regard we must stress upon the language of Section 3 of the Medical Termination of Pregnancy Act, 1971

In the case of pregnant women there is also a `compelling state interest'in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.

In light of these findings, it is the `Best Interests' test alone which should govern the inquiry in the present case and not the `Substituted Judgment' test.


One immediate query could be whether the Court was correct in discussing at length the HC's June 9 judgment, when arguments were heard by the Supreme Court Bench only on the HC's June 17 judgment on whether the woman in question could continue her pregnancy. The June 9 judgment involved substantial questions, including the validity of the 2002 amendment to the MTP and whether a mentally retarded woman could give informed consent. Obviously, the Supreme Court has overruled the June 9 HC's judgment too.

Curiously, the SC has also pronounced on another issue,whether termination of pregnancy after 20 weeks would be correct. By defending the MTP's ban on abortions after 20 weeks, has the SC decided without hearing, another SLP before it?

(Readers are requested to use the MTP label to read our previous posts on the subject)

"Fundamental Rights" and the "Chill and Distant Heights"

Barack Obama’s op-ed piece in the New York Times on August 15, 2009, reminded me that government servants do not lose their individual rights when they assume office. Imagine a Congressional law which prohibits the President from appearing in popular television shows like the Tonight Show, or from writing for newspapers – wouldn’t the law be invalidated under first amendment scrutiny? The interesting point here is that although (that which we in India term) “fundamental rights” are protections primarily available against the government, you don’t lose those rights even though you may become a part of the government. Similarly, an officer of (say) the Life Insurance Corporation of India is still entitled to ‘natural justice’ when removed from office. Of course, there are good reasons why visible members of the executive government/legislature should be able to communicate ideas/information publicly.

But then again, appointment to the Indian judiciary does involve a significant sacrifice in terms of speech and associational rights. One of us has highlighted elsewhere the 1997 'Restatement of Values of Judicial Life' which mandates judicial reticence on some issues - while there seems to exist a wider convention of judicial silence on many issues which seems only recently to have been broken in blogs/newspaper articles written by judges in the context of the assets controversy (see article) [after all, who knows what questions may come up in litigation tomorrow?]. It would be interesting to situate the question of judicial propriety within a wider free speech debate.

Pendency of Cases in Indian Courts

This blog has, on several occasions, noted the outstanding work that PRS Legislative Research is conducting on India's representative institutions. I was thrilled to find a new document prepared by them on the pendency of cases in Indian courts. The analysis reveals, inter alia, that assuming there are no fresh cases and no increase in judge strength, it would take 9 months for the Supreme Court to clear all pending cases; and that India’s current judge-to-population ratio stands at approx. 12.5 judges per million, compared to 104 for the US. Hopefully such studies will expedite the process of judicial reform.

Friday, August 28, 2009

PILSARC's Blog: A commendable contribution

I wish to draw the readers' attention to the PILSARC's blog, a commendable attempt by Dr.Rajeev Dhavan to make his published articles and comments on public affairs in the form of editorials easily accessible online to his readers. LAOT has been consistently (most often with a critical eye) following Dr.Dhavan's writings which are of immense interest to the readers. Here is a 2005 commentary published on LAOT on Dr.Dhavan's contribution to legal scholarship. The subjects dealt with on the PILSARC's blog so far include the Judges' assets controversy, book bans, laws regulating heritage conservation, mentally retarded woman's right to continue her pregnancy, the Rita Bahuguna-Mayawati spat and surrogacy - a virtual treat to those with an appetite for reading legal commentary on contemporary issues. The blog can be visited here as well as from our sidebar in future.

Thursday, August 27, 2009

Union of India v. Ramesh Ram: Arguments concluded

Arguments have concluded and the judgment has been reserved in the case before the Constitution Bench. Here is the latest SC order giving details of counsel who argued on behalf of various litigants.

The case is interesting because the contentious UPSC Rule 16(2)which allowed migration of candidates from the general list to reserved category for the purpose of service allocation was justified as well as opposed by different counsel on the ground of Article 14. The following are the details of various litigants before the Court.

Ramesh Ram belongs to reserved category. He is a Reserved Candidate and is already in service. Because of Rule 16(2), he could not get a higher service allocation, as the same was given to a migrant from general category, who claimed reservation for service allocation. Ramesh Ram wants 16(2) to be struck down, and his plea was upheld by the Madras High Court.

Navlendra K.Singh, K.Chandrasekar and Ramanjit Kaur Sethi are petitioners from general category who want 16(2) to continue. According to them, if the reserved category candidates moved from the open category to reserved category for the purpose of service allocation, then the consequent vacancies under the open category could be filled by meritorious candidates in the list (who may either belong to general or reserved candidates). They oppose the plea of the reserved candidates that a vacancy created by the movement of reserved candidate from the open to reserved list must be filled by a 'relaxed standard' candidate from the reserved list. This, they argue, would increase reservation beyond 50 per cent, and therefore, unconstitutional. Since 2005, the number of candidates who moved from open to reserved category for the purpose of service allocation has been on the rise. In 2005, out of 32 reserved candidates in the open list, 27 moved to reserved category; the remaining 5 were happy in the open category, because they got the services they preferred. In 2006, out of 58 reserved candidates in the open category, 43 moved to reserved category. In 2007, out of 96 such candidates, about 44 moved to reserved category for service allocation. Therefore, the vacancies left by them in the open category must be filled according to merit in the general category, they say.

Union of India is representing the case of Meritorious Reserved Candidates (MRCs)who moved from the merit list to the reserved list for the purpose of service allocation, and also supporting the petitioners belonging to the general category, who want 16(2) to continue. The MRCs are not litigants before the Court as the UOI is defending them.

Praneet Choudhary, Ankur Dular, K.Ganesh, and Mali Dhananjoy Shivaji belong to reserved category, and have filed writ petitions challenging 16(2). Because of 16(2), they have been denied their preferred service in the 2007 and 2006 Civil Services examinations.

Mahatma Phule Samata Parishad has filed a PIL challenging 16(2). Ram Avadhesh Singh, Member National Backward Classes Commission, has filed another PIL also challenging 16(2).

It is worth revisiting the case once the written arguments are filed after a week.

Justice K.Kannan on whether mentally retarded can continue pregnancy

One of the interesting by-products of the Judges' assets controversy is that we came to know of Justice K.Kannan's blog. Today, most newspapers referred to him as one of those who collectively influenced the Supreme Court to agree to public declaration of Judges' assets, although Justice Kannan's view is in principle against it. In his latest blog post, Justice Kannan reflects on the recent case of Chandigarh Admn v. Nemo which LAOT had discussed recently. Justice Kannan defends the HC's judgment, and wonders how Supreme Court will be able to justify its reversal of the HC's verdict.

Sociologist Dipankar Gupta's latest book

The recent book ‘The Caged Phoenix: Can India Fly?’ by sociologist Dipankar Gupta is proving to be as controversial as the author himself. I have reviewed the book in ‘Biblio: A review of books’ magazine (July-Aug. 2009 edition).

Since the online review is not freely accessible (it costs 30 rupees per article), here is a very brief summary of the pastiche of themes (not my views on it) that Gupta deals with. Each of these is provocative enough for several posts.

1. Globalisation in India is not a high-tech revolution but low-tech production based on cheap labour.

2. Romanticising the Indian village is absurd. The rural economy has collapsed; the village is a shadow of its former self, and most villagers think only of migrating to the cities.

3. There is no substitute to the role of the State when it comes to modernising India. NGOs who believe so are only trying to make themselves more relevant.

4.. India is not an exotic country. Cultural explanations of Indian problems detract from more mundane solutions.

6. Caste in India is based more on horizontal tensions between competing groups, rather than a ritualistic hierarchy based on purity/pollution.

CJAR's statement on SC's decision to make Judges' assets public

The decision of the Supreme Court judges to put their asset declarations on the Supreme Court website is a welcome first step towards transparency and accountability of judges in this country. It is also a tribute to the power of public opinion. We hope that this decision will encourage and spur the judges of the High Courts in the country to do likewise. We also hope that it will put moral pressure on other public servants in this country to similarly make their asset declarations publicly available, in accordance with the spirit of the Supreme Court judgement by which they ordered public declaration of assets of candidates contesting elections.

However, this decision of the Supreme Court judges does not obviate the need for a law to make such public declarations compulsory. Indeed, the law must provide for an annual public declaration of assets and liabilities as well as income tax returns of all public servants, including judges. It is only when people can compare the assets of public servants with their legal sources of income, that one can catch public servants who have acquired assets disproportionate to their legal income. The argument that income tax returns or asset disclosures of public servants is an unwarranted invasion of privacy of public servants is specious, since in a democracy, the people who are the real sovereign are entitled to know whether their public servants are paying their taxes and whether they have acquired assets which are disproportionate to their legal income.

The public disclosure of assets by judges, though a welcome first step, is certainly not the end all of the serious problem of judicial accountability or the lack of it. The main problem is the lack of an independent credible institution which could entertain complaints against judges, investigate them and take action against errant judges. This needs to be a full-time body which is independent of the government as well as of the judiciary. Institutionalising an in-house body of sitting judges as a Judicial Council to entertain complaints against judges as proposed in the Judges Inquiry amendment Bill will not serve the purpose. In-house bodies of lawyers ie the Bar Council, and of doctors ie the Medical Council have notoriously failed to seek accountability of lawyers and doctors who have been misconducting themselves. Such bodies are plagued by inevitable conflicts of interest. Moreover, a body of sitting judges would not be able to devote the time required to properly enquire into complaints against judges, which have been growing.

Apart from this, there is a serious problem with the method of appointing judges to the higher judiciary. There is not only no transparency in the process, there is also no system or method followed for preparing shortlists or for choosing among eligible candidates. The whole process is totally arbitrary and ad hoc which has led to political favouritism, when appointments were in the hands of the executive, and nepotism when appointments have been with the judiciary. Here too, we need a full-time independent institution which can methodically, systematically and transparently go about the job of selecting judges of the higher judiciary.

We also need to get rid of the Veeraswami judgement which restrains criminal investigation of judges without the prior written permission of the Chief Justice of India. This has tied the hands of investigating agencies from investigating judges of the higher judiciary. A Judicial Bureau of Investigation under an independent Judicial Complaints Commission, should be set up to investigate complaints against judges.

We also need to amend the Contempt of Courts Act to do away with the colonial and antiquated "scandalising or lowering the authority of the Court”, from the definition of criminal contempt. This has deterred public exposure of corrupt judges, and it is certainly not necessary to protect the honour or dignity of honest judges or of the judiciary.

The road to securing the judicial accountability therefore, is still long and hard. But proper accountability for such a powerful and vital organ like the Indian judiciary is absolutely vital for the survival of rule of law and of democracy in this country. The lessons from the asset disclosure controversy are that an organised public campaign and galvanised public opinion can and sometimes does bring about fundamental institutional changes in a society.



Issued by:

Prashant Bhushan

On behalf of
Campaign for Judicial Accountability and Reform

Wednesday, August 26, 2009

Supreme Court Judges agree to declare assets

The Supreme Court Judges, after a marathon meeting, have reportedly agreed to put details of their assets on the SC's website. Here is the breaking story. The RTI applicant, Subhash C.Agrawal, whose RTI application started it all, would never have imagined that his innocuous application seeking to know whether the Judges have been complying with the in-house directive to submit asset details to the CJI, would finally succeed in forcing the Apex Judiciary submit to public opinion. Here is Agrawal's original RTI application, which he promptly emailed to me.

Shri Ashok Kumar ji
Central Public Information Officer
Supreme Court of India
Tilak Marg
New Delhi 110001

Sir
According to a HT news-report (copy enclosed), a resolution was passed on 07.05.1997 by 22 Honourable judges of the Supreme Court presided by the then Honourable Chief Justice of India Mr Justice JS Verma ji requiring “every judge to make a declaration of all assets in form of real estate or investments held in their name or their spouse and any person dependent on them, to the Chief Justice”. I will be obliged if your honour very kindly arranges to send me a copy of the said resolution. I may bring to your kind notice that your predecessor Shri S Chaterjee was kind enough to provide me earlier on request a copy each of ‘Restatement of values of judicial life” and “In-house procedure”.

I will be obliged if your honour kindly provides me information on any such declaration of assets etc ever filed by Honourable judges of the Supreme Court. Kindly also arrange information if High Court judges are submitting declaration about their assets etc to respective Chief Justices in states. Postal Order Number 59E 110038 for rupees ten in name of Registrar (Administration) is enclosed towards RTI fees.

Regards

SUBHASH C. AGRAWAL

ALSO READ: The 1997 Supreme Court's Full Court Resolution requiring Judges to declare assets.

Tuesday, August 25, 2009

OCCASIONAL DIGEST

1. A.G.Noorani on the illegality of Jaswant Singh's expulsion from the BJP. He refers to the Gopal Godse case and Justice Chandrachud's judgment. Though he refers to S.95 Cr.P.C. in passing, I have dealt with it separately in this piece. AGN has not yet reviewed Jaswant Singh's book yet. One could perhaps expect it in the next issue.

2. I have traced the roots of the Epidemic Diseases Act 1897 and dealt with the recent efforts to replace this in this article. Strangely, even the swine flu has not led to a renewed effort to replace this outdated Act.

3. I have reviewed two books on Indian elections in this article, Miracle or Enigma?. Among other things, the former CEC, Krishnamurthy's view that economic backwardness and democracy cannot coexist left me bewildered. I would rather assume that democracy is essential to remove economic backwardness.

4.A.G.Noorani reviews Hector Olasolo's book and makes a case for punishing Narendera Modi for 2002 pogrom.

5.R.K.Raghavan's excellent piece on the DNA controversies. A national DNA databank can help an investigator handling a blind crime, but human rights concerns and a huge backlog of cases are major hurdles, he says. In the Buddha Jayanthi Park rape case, [State v.Harpreet Singh, Sessions case No.10/2004. Judgment by ASJ S.K.Sarvaria on August 22]which Raghavan cites, the initial blood sample taken from the accused got putrefied, and the accused refused to give another sample before the Metropolitan Magistrate to the I.O.

6. An article by Aparna Alluri says repeated cases of acid attacks in Andhra Pradesh form part of a disturbing trend of rising crimes against women. This is another area where absence of a separate legal provision to tackle acid attacks has resulted in the crime being treated as just a grievous hurt. The CSAAAW has sought an amendment of Section 320 IPC to deal with acid attacks specifically. Bangladesh has already introduced death penalty against acid attacks in 2002. I am unable to understand why human rights groups disagree on the need for a separate legal provision to tackle acid attacks.

New Law on Honour Killing?

Some Rajya Sabha MP's recently demanded a special law on honour killings by caste panchayats. Although the Home Minister seems to have rejected such a demand, some women's groups think it is necessary. But why do we need a special law? The IPC has a crime of murder, which clearly covers all cases of honour killings (unlike 'sati', which was sometimes passed off as suicide). Individuals who are involved can be prosecuted as abettors.

The proposed law will probably do the following:
- make guilt communal, rather than individual. So, all members of the panchayat, by virtue of their association, will be deemed guilty, whether or not they supported the killing.
- contain a reverse onus clause, allowing the court to presume guilt until proven innocent.

We have seen this before, in a plethora of special laws dealing with violence against women and dalits. Mostly, they have managed to trample upon civil liberties without making any noticeable difference to conviction rates. If anecdotal evidence is anything to go by, conviction rate under these special laws is lower than that under the IPC. [A centre at the NLS was working on assessing the impact of special criminal laws protecting dalits - does anyone have access to the report? Statistics may prove anecdotal evidence wrong.] Their apparent failure is unsurprising, because they misdiagnose the problem. Honour killings are rampant not because current laws are insufficient, but because our criminal justice system is rotten. Make all the special laws you like, and do away with as many traditional liberties as you may, honour killings (and other atrocities against vulnerable groups) will go unpunished unless there is a professional, independent, efficient and unbiased police, prosecution and judicial service. We must resist the temptation to see draconian criminal laws as the panacea all our ills. Honour killings must stop, but we must insist on more than lip-service - which, experience shows, any special law is bound to become.

Addendum: perhaps one useful addition that can be made to the IPC is the criminalization of the use of force in order to get someone married against their will or to prevent them from marrying someone they are legally entitled to marry. There is no law which deals with this issue and a special legislation towards this goal can secure the right to marry.

Extremely Violent Movies- Ilustration of changing political morality

The following piece was written by Chandan Gowda, one of our guest bloggers, in the newsletter of the Suchitra Film Society, which is the oldest film society in Bangalore. In the essay, Chandan discusses the extreme violence in Kannada movies since 1995. Chandan describes the movies as an illustration of the changing political morality of our times. This is indeed a serious issue, given the challenge of criminalisation of politics that is crippling both politics and governance in the country. Further, the description of the city and the resultant "last recourse" violence not only seek to portray the state, law and order and politicians in a particular manner, but also in some form glorify violence against all other methods of solving a problem. While it is easy to dismiss the violence and portrayal of the state as crass, vulgar and irrelevant, it is important to understand the belief systems that movies can engender and sustain. In fact, an important topic of discussion in Bangalore is the discernible increase in intolerance in day to day public interactions. Instances of people reacting violently to incidents like minor accidents, identification of objectionable public behaviour (e.g., speaking on the mobile phones in a theatre or a movie hall) are on the rise.

I set out Chandan's essay below:

Referring to her role in Avva (2008) in a television interview, Shruti, the Kannada actress, said: “Her sharp tongue itself is the machhu, longu (hatchet, long sickle) in the film.” Her analogy affirms the wide popularity of what can be termed the Machhu Longu (ML) films in Kannada, all of which are set in the underworld. Om, the 1995 blockbuster, spawned a steady stream of ML films over the next decade, many of which became big hits. This short essay has been written with the following films in view: Om (1995), AK-47 (1999), Majestic (2001), Daasa (2003), Kariya (2003), Kalasipalya (2004), Jogi (2005), and Deadly Soma (2005). All of them have met with commercial success. They deserve closer study as texts illustrative of the changing political morality in our times. Sidestepping questions of their directors’ intention, their artistic merit, and their social consequences, this brief essay attempts to identify a few of the specificities marking these films.

The city unfailingly appears a dark, unattractive and dangerous place in these films. All the films are set in Bengaluru except AK-47, which unfolds in Mumbai. In AK-47, Om Puri, a police sub-inspector, remarks: “This is Mumbai. Only the gun speaks here, not the tongue.” Majestic introduces Bengaluru as a place where “people make money in the name of God.” Graphic scenes of poverty recur in the ML films: children eat leftovers found in dustbins (Majestic), a mother prostitutes herself to afford medicine for her epileptic daughter (Majestic), the hero’s mother removes used plaintain leaves in a marriage choultry (Daasa). Scenes of the city’s underbelly also contribute to the dark atmosphere: slums, beggars, pimps, prostitutes, mutton shops, poultry farms, cow-sheds, tea, kabab and omelette carts, and autorickshaw-depots.
Stark and unromantic, these depictions of poverty and the city’s underbelly enhance the diversity of city images seen in cinema.

The degenerate urban situation is being exploited by politicians, police officers, businessmen and the goons. In short, the state and law have collapsed. Democracy is in shambles and the state has little or no legitimacy left in it. In Kalasipalya, for instance, an MLA gloats that his power will let him win elections anywhere in the state, “. . . Dharwad or Davangere, Kamakshipalya or Kalasipalya.” And, the opening scene in Daasa shows the Deputy Chief Minister of Karnataka agreeing to give ten crores to the Indian Prime Minister in return for the Chief Ministership.

Morality survives, if at all, among the helpless, ordinary people struggling to make a living. The ML films commonly begin in the shadow of a near-total triumph of a corrupt system. Extraneous circumstances invariably pull the hero into taking up violence and turn him into an anti-hero. The anti-heroes exhibit virtues of honesty and fair-play amidst their violent efforts to carve domains of autonomous authority within an evil system. The violence of the anti-heroes, however, is ultimately not condoned in any of the films. Punishment awaits them in the form of death or life-imprisonment. Violent means of achieving the ends of social justice continue to be morally illegitimate in these films.

The strongest criticism of the ML films has concerned their gratuitous violence. The fight sequences have been taken to a new level of description here; they are bloody, gory and detailed in a way previously not seen in Kannada films. In Daasa, the hero pours acid on his opponent’s face and watches it with fascination while everyone around him start laughing. In Kariya, after the hero strikes a person dead in a cemetery, two of his friends start dancing saying they cannot help it. Such voyeuristic treats in violence are routine in the ML films. While a discussion of the ethics of representing violence is definitely in order here, we have to also recognize that loyal fans of the ML films isolate and compare violent fight sequences from different films in this genre. In other words, the styles of representing violence rather than their literalness are often at stake behind the fans’ appreciation.

An obvious feature of the ML films is the attempt to project a cool attitude. This attitude of cool, propped up by words like “metre,” “sketch,” “macha,” and “scope,” is about gandasattva (manliness). Explicitly invoked with reference to the necessity of courage and an easy resort to violence, the cool attitude in ML films also involves being rough with women. The anti-heroes of the ML films mark a clear departure from the long cherished image of the soft-natured Kannadiga that found its most powerful expression in the figure of Rajkumar.

Another dimension of the cool attitude is the strong embrace of an intolerant Kannada identity. In Daasa, the hero chops the arm of a Rajasthani seth, who is trying to buy an orphanage, and kills him: “If someone from a god-forsaken place like you can act big, how must I, who was born here and grew up drinking Kaveri water, act? If I let you alone, all of Karnataka will be insulted.” In Deadly Soma, the evil partner who cheats Soma’s father is a Telegu speaking Reddy. Marwaris and Hindi-speaking Muslims also figure as bad characters in some of these films. This casual endorsement of violent retribution contributes to, and is a reflection of, the growing linguistic anxieties in the state.

The ML films are on the wane and do not draw the crowds like before; their narrative structure seems to have grown tired. But the genre held sway for fifteen years. A moral dismissal of these films as crass and vulgar, this essay, I hope, makes clear, is to abdicate the serious task of examining them as texts of the evolving political-moral world around us.

Monday, August 24, 2009

An Indian ACLU & Article 19(2)

Sometimes, our comments section includes more insightful observations than the posts themselves. In order that the exchange between Sandeep Dougal and Tarunabh Khaitan in the comments section of the earlier post does not suffer the readers' oversight, I republish them here as a separate post.

Sandeep Dougal:

Thank you for a very informative and educative post. I totally agree with it but it is the last line that bothers me, viz. "The earlier Jaswant Singh or any citizen in Gujarat challenges the ban under Section 96 Cr.P.C. the better."

Jaswant Singh has already made it clear in some TV interview or the other that he has no intention of fighting the ban legally. When asked, he also said that he didn't know about his publishers. I think the publishers, for various reasons, would decide not to challenge the ban.

The Congress party in Gujarat has already welcomed the ban. In general too, activists etc end up viewing specific cases through various party-political prisms and may want to be selective about the causes they wish to fight for.

I am sure there would be some individual supporters of free speech who would want to challenge the ban, but more often than not such votaries of free speech are handicapped because of various costs involved in finding a lawyer and fighting the battle legally.

Apart from this one particular case, in general also, there seems to be a crying need for clarity in the law so that reckless bans on nebulous and idiotic claims -- as V. Venkatesan so correctly highlights -- are not resorted to easily by various state
governments.

I do realise that this is of course a complex subject and often, even when legal redressal may be possible, publishers of books or exhibitors of films,for example, bow down to the mob pressures. For example, in the case of James Laine's book, if memory serves me right, the publisher decided not to pursue the matter even after the favourable Bombay High court verdict, which in any case was later challenged.

Frankly, looking at how often and easily various hoodlums have made life miserable for assorted groups, I have long felt that we need an Indian equivalent of ACLU:

I don't think PUCL/PUDR etc. have quite fulfilled the role they were set up for or are equipped to, or even wish to, play such a role.

I must admit, though, that I have not even followed ACLU other than very casually, but the little that I have -- in particular its famous stand, "ACLU has no love for the Ku Klux Klan, but does for the First Amendment" -- has always made me wonder why we do not have any such body of progressives in India who are willing to take a principled and uncompromising stand on free speech?

I wonder if LAOT would want to explore the possibility of a sustained campaign, looking into the constitutionality of various bans that are still in force -- I can imagine it would be quite a task to even compile a comprehensive list though we could begin with some of the high profile cases -- and at least to consider the possibilities of figuring out ways of fighting various ridiculous bans?

Or explore how publishers, editors etc could equip themselves to deal with law and order situations that are sought to be created, as the Statesman faced, for example, in Calcutta over the Johann Hari op-ed? I of course ask this as I have a vested interest in clarifying my own thinking over the many intertwined issues in such cases and would love to hear from all of you.

I would also very much value if someone could point me to where I could educate myself better on the essential differences between the First Amendment rights in the US and the constitutional position in India.

Tarunabh Khaitan:

I think Sundeep's suggestion for an Indian ACLU is a very important one, and perhaps deserves a separate post in itself. No political party in India takes a principled stand on free speech, and I daresay, the same seems to be true of most progressive secular groups. The entire point of free speech is to defend speech we dont like.

On his second query, the US first amendment has no exceptions to the freedom of speech in its text - there are only very narrow judicially carved exceptions which have stretched the meaning of speech (for example, when does 'speech' become 'noise' and therefore does not deserve protection etc). In Article 19 of the Indian Constitution, there is an explicit exception clause which allows prohibition of certain expressions. The Indian ACLU's task will be to monitor these constitutional boundaries and make sure they are not breached.

One must hasten to add, though, that restrictions on speech under Article 19(2) are only permitted, certainly not mandated. Therefore, one fails to understand why our courts entertain petitions to ban some film etc - how can the judiciary ban any speech? It has no power to do so. It can only police a ban already imposed by the executive or the legislature to make sure it complies with the Constitution. It is ridiculous, therefore, that various high courts (and I think even the SC) has issued notice to companies like Google and TV channels for offending you tube videos - an act clearly without jurisdiction. The laudable exception is Chief Justice of Shah of the Delhi High Court refusing to entertain a petition against 'sach ka samna'.

Sunday, August 23, 2009

How Gujarat Government ignored Atal Behari Vajpayee

"If you do not like anything in a particular book, then sit and discuss it. Banning a book is not a solution, we have to tackle it ideologically ... If differences of opinion remain after a issue is discussed, the best way would be to come out with another good book on the subject,’’

These were the then Prime Minister Atal Behari Vajpayee's words, expressed after unveiling a statue of Shivaji at Sahar International Airport, in 2003. Read the full story here.

Saturday, August 22, 2009

Gujarat Government's unsustainable ban on Jaswant Singh's book

Despite the huge controversy that the book has led to within and outside the BJP, the Gujarat Government may have no case at all to ban Jaswant Singh's book on Jinnah. The text of the State's Home Department's notification, issued on August 19, is as follows:

GG/64/09/SB.II/COM/1309/1017:
In the exercise of the powers conferred by section-95 of the Code of Criminal Procedure, 1973, read with sections 153A and 153B of the Indian Penal Code, the Government of Gujarat hereby forfeits and prohibits the said book, its publication, its display, its sale and distribution and any kind of its use.
Signed by S. S. Brar, under secretary to Government.


As has been pointed out by the Bombay High Court while lifting the Maharashtra Government's ban on James Laine's book on Shivaji (for previous posts on the issue, with links to the HC judgment, use this link)a notification under Section 95 Cr.P.C. must specify the grounds. Not only the notification is silent on the grounds, but even the so-called justification for the ban as explained by the Gujarat Government's spokesperson is not legally sustainable. None of the reasons cited by the spokesperson, including the alleged attempt to defame Sardar Patel can attract Section 153A or 153B of IPC. If you use the reasoning adopted by the Bombay High Court in the Shivaji book ban case, the Gujarat Government has made its position vulnerable by claiming that all Gujaratis hold Sardar Patel in high esteem. If so, where is the question of promoting enmity between different groups on any ground, as there are no different groups on the question of holding Sardar Patel in high esteem. If the State Government thinks the book is likely to disturb the public tranquillity, it has not claimed so in the notification, let alone its obligation to explain it with some prima facie satisfaction.

The addition of Section 153B IPC in the notification is bizarre: how could anyone say that the book makes any imputation that the people of Gujarat, because of their admiration for Sardar Patel, cannot bear true faith and allegiance to the Constitution of India or that they be deprived of their rights as citizens of India? Is the State Government prima facie satisfied that the book is likely to create conflict between the people of the state and the rest of India (unless the Government assumes that Sardar Patel is not held in high esteem in the rest of India - which is equally fallacious).

The 26th April 2007 judgment of the Bombay High Court has been stayed by the Supreme Court, and the ban on James Laine's book imposed by the State Government continues. The SLP by the Maharashtra Government has not yet been heard by the Supreme Court. In a subsequent judgment while upholding the Karnataka Government's ban on the Kannada novel, Dharmakaarana, the Supreme court justified the ban on the ground that the Government can do so as a preventive measure, if it thinks there is a threat to public order by its publication. This was a deeply flawed judgment as has been explained in these previous posts.

Even if this judgment is considered as having laid down the law on the subject, this cannot be the basis for the Gujarat Government's notification. In the case of the Kannada novel, the protests against the book were from a particular religious community, whose members were offended by certain portions. The Gujarat Government's notification is silent on what part of Jaswant Singh's book offended the people of the State, or whether they are likely at all to protest against the book threatening breach of public order in the State.

I am intrigued by the State Government's ban on the book only within Gujarat. Section 95 Cr.P.C. enables any police officer to seize the copy of the book wherever found in India. That is why I believe one cannot get copies of James Laine's book on Shivaji outside Maharashtra or Dharmakaarana outside Karnataka. How can the ban only within a State be effective? The earlier Jaswant Singh or any citizen in Gujarat challenges the ban under Section 96 Cr.P.C. the better.

Also read:
1. The key references to Sardar Patel in Jaswant Singh's book
2. IE story on the August 19 notification
3. Rajeev Dhavan's Publish and be damned

Update:: The Gujarat Government's ban on Jaswant Singh's book is indeed a test case, as other States are not inclined to impose a similar ban and the State itself is not keen on banning it in other States, even though Cr.P.C. enables a State Government to do so. In the case of James Laine's book on Shivaji, his publisher, OUP withdrew the book from sale from all the bookshops in India, even though it was banned by only one State Government. Salman Rushdie's Satanic Verses was banned under Section 11 of the Customs Act by the Central Government. The Kannada novel, Dharmakaarana was published in 1995, and was nominated for the State's Sahitya Academy award. The State Government banned it under Section 95 Cr.P.C. in 1997, after protests from certain groups.

Friday, August 21, 2009

The Judges' assets controversy: A dialogue between a Judge and an activist

Justice K.Kannan of Punjab and Haryana High Court has responded to Mr.Prashant Bhushan, Convener of the Campaign for Judicial Accountability and Reform which has been spearheading the campaign for public declaration of assets by Judges. Here, we present Justice Kannan's response and Mr.Prashant Bhushan's reply to it, with due permission from Mr.Prashant Bhushan to publish the same in its entirety in view of its public interest. Justice Kannan's document is also available on his blog.

Justice K.Kannan's response

Dear Mr.Prashant Bhushan,

I do not know your official email id and hence posting this mail at this id under the belief that it will gain your attention. My chief justice gave me your letter addressed to each of the judges requiring the declaration of assets. I hold views against your demand and I have attached a document for my point of view. Having said this, I still have no qualms about letting you know about my riches or lack of it!

The document

Pompeia was perhaps a terribly wronged woman. In 62 BC she posted the festival of the Bona Dea ("good goddess"), to which no man was permitted to attend. However a young patrician named Publius Clodius Pulcher managed to gain admittance disguised as a woman, apparently for the purpose of seducing Pompeia. He was caught and prosecuted for sacrilege.

Caesar gave no evidence against Clodius at his trial, and he was acquitted. Nevertheless, Caesar divorced Pompeia, saying that "my wife ought not to be even under suspicion." It almost seems judges’ turn now. Judges are under increasing pressure to declare their assets publicly on a lofty allusion to Caesar’s wife having to be beyond suspicion. The CIC verdict directing the Supreme Court judges to declare their assets has found widespread approbation and the attempt of the Supreme Court to reverse the verdict by filing a writ petition before the Delhi High Court has drawn flak from many a quarter.

Former Supreme Court judges, two of them who were themselves previously Chief Justices of India (CJIs) joined issues and said that transparency and probity dictated that the assets be declared voluntarily by judges. The present CJI said that there was no law requiring judges to make a declaration of assets to the public. To this was the response by some jurists: of what use is Right to Information Act, if we must keep adding several subjects which could not be accessed by public? According to them, the already excepted areas in RTI Act under section 8, such as matters involving national sovereignty, parliamentary privileges, etc., ought not to be enlarged.

Nearer home Sri Lanka passed Declaration of Assets and Liability Law (Act 1 of 1975) requiring judges, among others to declare their assets at the time of their appointments. Many of the African countries have passed such legislation in the recent years to quell widespread allegations of corruption in high constitutional offices.

In India, although there is no such law, Supreme Court judges have been declaring their assets since 1997 to the CJI at the time of their appointment as an apex court judge and thereafter every year as per a resolution passed by the apex court on May 7, 1997. "The High Court judges may consider adopting a similar resolution in case it does not have a system of judges declaring their assets soon after the assumption of office and regularly updating the declaration made by them," said the CJI in his letter to High Court Chief Justices. The CJI wrote, "It is essential for an independent, strong and respected judiciary and indispensable for impartial administration of justice." He also called upon the High Court judges to adopt what is known as "restatement of values of judicial life" adopted by the apex court in another resolution earlier.

So what is the objection, if the statements made by judges to their respective Chief Justices are made public? Normally, it may not even sound civil to ask your own brother, sister or even a close friend about his or her financial details without offending his or her sensibilities and evoking a sense of embarrassment. Let us assume that that the attitude is never like a peeping Tom’s voyeuristic proclivities- in this case, however, not in a prurient form, to purvey what is in a judge’s wallet but rationalize it on the ground that the person who is entrusted with the task of judging other’s conduct is beyond reproach.

Ask this question, what do you do after getting the details? Should a judge be answering everyone how he has got the wealth that he has declared? Imagine a judge enquiring into allegations of disproportionate wealth case of a bureaucrat. In the course of the proceedings, what if the litigant asks the judge, ‘how did you obtain your wealth, before asking me to explain my riches?’ It may not be a daily occurrence, but consider the mischief that the right to demand the assets statement of a judge could entail. Again, judges are not in the same league as politicians.

It is precisely for this reason that the judge, who granted an order of stay of the CIC order, said that judges could not be treated like politicians and ordinary government servants. Politicians are elected by people; they have a right to know the financial antecedents. A corrupt politician may not be re-elected again, if the voter believes that the politician has been corrupt. Can anyone doubt the wisdom of the judgments of the Supreme Court in Union v Association for Democratic Reforms (2002) and PUCL v Union of India (2003), when they said that declaration of assets at the time of standing for election has become the necessity of the day because of statutory provisions of controlling widespread corrupt practices have become insufficient? Judges are not elected as are done in U.S.A. They cannot be removed by people.

What do you do with corrupt judges, do you ask? Without addressing the issues of the appointment and the removal procedures as they exist now, you cannot do anything. Shall we put the nominations for appointments of Supreme Court judges and of the High Court through discussions in the parliamentary select committees and of the respective State assemblies before they are taken on board, so that a full- fledged roving enquiry is made about the antecedents of a judge before he is appointed? A judge that is corrupt cannot be tried by his own brother judge or an ordinary magistrate, as any other public servant is tried, can he be? Judiciary ought to be institutions where normal litigations are fought, where a judge plays the role of an impartial arbiter. Can you parade a judge for dismissal from service before another judge?

Let us evolve mechanisms within the judiciary itself to regulate its conduct. If the existing mechanism is perceived as not being successful in preventing corruption in the judiciary, let us evolve better procedures for their recruitment and removal. That will give us answer to who shall access the records of assets of judges.

Mr.Prashant Bhushan's reply:

Dear Justice Kannan,

Thank you for taking the trouble of writing to me about your views on the declaration of assets. Your views are forthright and from the fact that you have sent your declaration of assets to me is clear evidence of the fact that your views are not coloured by a reluctance to declare your own assets.

But with respect, I beg to disagree with your views as set forth. In essence, what you say is that a judge having to answer uncomfortable questions about his wealth or its source or otherwise would compromise his independence. You go on to say that judges should not be accountable to the people or to any other authority or even to their brother judges. In maintaining this, you are indeed consistent. Consistent yes, but in my view the marginal gain in independence will be more than offset by the enormous increase in corruption and misconduct of judges due to the lack of accountability.

We have advocated for a long time that there needs to be set up a Constitutional National Judicial Complaints commission, which will have the power to take disciplinary action against judges. This should be constituted in the following manner: The Chairman appointed by a collegium of all judges of the Supreme Court. One member appointed by a collegium of all CJs of the High Courts. One member to be appointed by the Cabinet. One member to be appointed by a collegium of leaders of Opp of the Lok Sabha and Rajya Sabha. And one member to be appointed by a collegium of the Chairman NHRC, CVC, CEC, CAG etc.

All these members would enjoy security of tenure and would be independent of the government and the judiciary.

However this is a long dialogue, which we can engage in when we meet.
But I do appreciate your candidness and forthrightness.

With warm regards,
Prashant Bhushan