Wednesday, March 31, 2010

Life imprisonment & premature release: Nalini's case is a timely reminder

By Bikram Jeet Batra

The Tamil Nadu Government has rejected an application by Nalini – one of the convicts in the Rajiv Gandhi assassination case – seeking a premature release from her sentence of imprisonment for life (LI). Readers will recall that although Nalini was sentenced to death, the Governor of Tamil Nadu commuted her sentence to LI. Nalini has now completed nearly 19 years imprisonment. In all sentences commuted to LI, the convict must serve a minimum of 14 years imprisonment. Thereafter they have a right to be considered for premature release although not a right to be released.

Although the report of the prison advisory board is yet not available and the reasons for the refusal are unclear, Nalini’s case is a rare one where there was extensive media coverage regarding the premature release deliberations and decision-making. This case also highlights the fact that the executive does not automatically commute life sentences after 14-years imprisonment. Under the present system, where the State believes it has sufficient reason to keep a person in jail beyond 14 years, it can do so – with reasons supplied and subject to judicial review.

Why then are our judges so keen to reject the existing system of remission and premature release? In a series of judgments, the Supreme Court has created a new category of LI – where judges will lay down a much higher minimum term at the time of sentencing. In addition to ‘ordinary’ murders where regular LI would be sufficient and ‘rarest of the rare’ where a death sentence is to be awarded; there is now a third category of ‘rare’ murders where the Judge can award any minimum term between 14 years and whole-life.

I have written on this blog previously about the constitutional and penological questions that arise from these sentences. There are some obvious sentencing concerns as well. The creation of this new category of lifers with variable minimum-terms has come without any deliberation on a framework or process to assist judges in determining the length of sentence. In the past few years, many Supreme Court judgments have accepted that the functioning of the ‘rarest of the rare’ formulation in capital sentencing was arbitrary and unsatisfactory. How will this new categorization avoid the same?

Glaring discrepancies are already visible in the new LI judgments. Last year, in State v. Shree Gopal @ Mani Gopal (where the new category was named ‘rare’), the Delhi High Court awarded a minimum of 20 years. In March 2010 the same judgment was cited as a precedent by a trial judge in Delhi who however decided that a 30-year term would be appropriate (State v. Jitender @ Kallu). Such discrepancies are not entirely surprising since the Supreme Court itself has ranged from 20-35 years and even to whole life sentences.

This is no minor issue. Lifers form over half of our entire convict population and over 8500 persons were sentenced to LI in murder cases in 2008 alone. With trial judges across the country now free to determine the minimum term – without any guidance whatsoever – wherever they deem the case to be a ‘rare’ murder, there is bound to be chaos in terms of sentencing.

The Supreme Court believes that creation of this new category is necessary since the executive acts mechanically in releasing lifers after the minimum 14 years imprisonment. Nalini’s case is a reminder that this entire change is unnecessary. Our existing system of LI can address any problem of mechanical release by ensuring there is some pressure on the executive to follow due process and apply its mind. In this case it was political actors and the media that brought the pressure. Monitoring by the Supreme Court or even the NHRC can have the same result for the thousands of other, lesser visible cases. Instead of resorting to a few tweaks that can achieve the desired result, our judges, inspired by similar ‘tariff’ systems of life imprisonment abroad, are treading down the dangerous path of piecemeal change.

[Bikram Jeet Batra is India campaigner at Amnesty International. The views expressed here are his own.]

Monday, March 29, 2010

Pakistan's Judicial Restructuring

Despite Pakistan's troubled history of executive-judiciary relations and frequent attempts by the executive to pack or sack the judiciary, public opinion seems to be wary of granting the judiciary greater powers over its composition. In a recent editorial, The Dawn
takes on Nawaz Sharif's suggestion that the Chief Justice and the judiciary comprise a majority of members of a proposed Judicial Appointments Commission.

As they argue, "A hermetically sealed judicial institution of that sort is antithetical to the principles of democracy. Why should the present membership of a state institution determine what its future membership will be? Remember that judges are free to vote with their conscience once sworn in because it is virtually impossible to remove them before they retire (which is how it should be). What Pakistan needs is a judiciary free from interference, not a judiciary that is independent in the sense of deciding its own membership"


I am curious as to what prompts this critique, which was not so prominently made in the early days when the Indian Supreme Court gradually assumed powers of appointment. It could be driven by a sense of unease with the present incumbent, or from having experienced the folly of insulating one branch of government from checks and balances.

Friday, March 26, 2010

Drafting the Nepalese Constitution

The drafting of new constitutions and the ultimate shape they take can yield global lessons. The most arresting recent example of this is perhaps the 1996 South African Constitution's constitutionalization of socio-economic rights which has catalyzed a wide-ranging debate within comparative constitutional law.

It is slightly surprising then that the drafting of the Nepalese Constitution has not figured more prominently in public discussions in India and around the world. I was, therefore, thrilled to read Menaka Guruswamy's recent article in the Economic and Political Weekly on the subject. The article wonderfully explicates the complexities underlying the process, and raises questions that post-conflict societies are likely, at some stage, to confront.

Abstract:
Integration of the Army and New Constitutionalism in Nepal
Constitution-making is a process involving a contested terrain and this is reflected in Nepal’s political situation today, particularly on the question of integration of rebel combatants into the army and its “democratisation”. It is important for Nepal’s political parties and forces to leave aside their past mistrust and come together to reach an equitable settlement while integrating combatants. Political foresight is also needed to appreciate that democratisation of all institutions, including the army, is imperative for creating the new constitutional democracy that is Nepal.

Wednesday, March 24, 2010

How a dyslexic student failed to get justice from Supreme Court

On March 19, Supreme Court refused to permit a dyslexic student use calculator in Class XII examination. The case is unusual for several reasons. The boy, Pranjay Jain, through his father, sought relief from the Supreme Court through SLP, after the Punjab and Haryana High Court pleaded helplessness, because of a stay order by the Supreme Court operating against the Bombay High Court order in a similar case in 2007. A Division Bench of the Bombay High Court had in another case in 2006, taken a similar decision.

The boy could not have sought vacation of stay, because he was not a party in the case before the Bombay High Court. Pranjay Jain sought interim relief from the Supreme Court in the form of permission to use calculator, pending the hearing of the SLP by the Court at the earliest. His Mathematics examination, conducted by the CBSE, was scheduled on March 22, and he wanted to use the calculator during that examination. The Supreme Court Bench which heard the matter need not have vacated the stay to give him relief. The Bench could have asked the CBSE to permit him to use calculator and to withhold his result, till the Bench decided the SLP against the Bombay High Court order. The Bench could have directed the CBSE to permit similar students who might apply for similar relief, and withhold their results as well, till it decided the matter at the earliest.

Instead of doing this which would have met the ends of justice, the Supreme Court Bench issued a peculiar order on March 19. It asked Pranjay Jain to withdraw his petition with liberty to approach the Division Bench of the High Court against the March 2 order of the Single Judge of the High Court (by Justice Permod Kohli). If a single Judge cannot provide interim relief because of the Supreme Court's stay in a connected matter, how could a Division Bench grant the same?

Pranjay Jain case is perhaps an instance of how the Supreme Court wrongly admitted the SLP and issued a stay at the first instance, even though the CBSE did not raise any Constitutional issue against the Bombay High Court's reasoned order in a similar case. This wrongful admission of SLP and issue of stay not only tied the hands of the High Court from providing interim relief to Pranjay Jain, but limited the Supreme Court's own options in providing appropriate and prompt relief to him. Perhaps, the Constitution Bench which is likely to lay down guidelines for admission of SLPs, must also consider when a stay order could be given, or vacated, or suitably moulded in order to ensure prompt and timely interim relief to litigants who are likely to suffer irretrievable loss of time and resources, in the event of refusal of relief.

Tuesday, March 23, 2010

In the aftermath of historic passage of WRB in RS

*My detailed story on the recent Delhi High Court judgment granting the right of women to Permanent Commission in the Army and the Air Force. I was surprised to find that the UPA Government which is claiming credit for the WRB, in fact, seriously contested the right of women for PC in Army and Air Force. An instance of double-standards?

*Frontline's cover story on WRB: Contributors, who are on the whole optimistic that more women MPs would mean more women-friendly policy-changes, examine various aspects of the Bill, and dispel misgivings. Sabiha Hussain is on the need to have sub-quota for Muslim women. Her concern that in the absence of sub-quota, parties will not nominate enough Muslim women candidates appears to be based on reality. It is reasonable to suggest that OBC women may entertain similar misgivings about their poor representation in the absence of sub-quota. Brinda Karat is sympathetic to this demand, but feels it should not stop the passage of the Bill in the Lok Sabha and is optimistic that OBC and Muslim women will get due representation without separate sub-quota, once the Bill is enacted.

* Apart from patriarchal opposition to the Bill from the Yadav trio, there is a non-patriarchal opposition to the Bill, which believes that the representation of OBC and Muslim women will suffer once the Bill becomes the Act. Those who suggest that it will not suffer cite history of representation of OBC men which has been raising; those who apprehend exclusion of OBC and Muslim women once the Bill becomes the Act without the sub-quota have so far only certain misgivings which remain to be substantiated. The optimism of the former may indeed be based on considerations of reality, but it still needs to be tested out. In my tentative view, the data regarding representation of OBC and Muslim women in local bodies is mixed, and may not be the correct indicator of what is likely to happen in the legislative bodies under the new law. We need to consider other factors like parties' willingness to field more Muslim and OBC women after the law is enacted. This means experimenting with the new law for a few years, and analysing the results for course-correction in the years ahead. The other alternative is to work out a suitable sub-quota through political consensus which will be a challenge under the current circumstances.

Does Parliament want to dilute Article 136?

Mr.K.V.Dhananjay has written to me raising this interesting issue:

Another Constitution Bench will now sit down to weigh what kind of cases should be heard by the Supreme Court in its appellate jurisdiction (that is, under Article 136 of the Constitution).

Parliament does not seem to quite agree with the above assessment. Lok Sabha has already passed 'The Commercial Division of High Courts Bill, 2009'. What this Bill aims to do is to create a special division within existing High Courts to fast track commercial disputes that are assessed beyond a 'specified value'.

How does the above Bill affect the work load of the Supreme Court?

Well, unfortunately, this new Bill provides a right of appeal to the Supreme Court.

Look this way - In the absence of the above Bill, an Order of a High Court is not appealable to the Supreme Court as a matter of right. The Constitution of India has vested in the Supreme Court, a power to entertain an appeal without vesting a corresponding right in the party to insist that his appeal be heard - this is what Article 136 does.

After this Bill becomes the law (after it is passed by the Rajya Sabha), the Supreme Court will be compulsorily burdened with appeals from Orders passed by High Courts under the new law. The Supreme Court cannot summarily reject appeals because a right of appeal has been furnished to the litigant.

Section 13 of this Bill says:

13. (1) In respect of suits of the category referred to in sub- section (1) of section 4,
section 5, section 11 and clause (i) of section 12, an appeal shall lie to the Supreme Court
against any decree passed by the Commercial Division.
(2) An appeal shall lie to the Supreme Court against the orders of the Commercial
Division referred to in clauses (a) to (w) of Rule 1 of Order XLIII of the Code of Civil
Procedure, 1908.
Explanation.— In this section, the word “decree” shall include all decrees which are
to be treated as decrees for purposes of Rule 4 of Order XXI, Rule 58 and Rule 103 of Order
XXI of the Code of Civil Procedure, 1908.

Sunday, March 21, 2010

Article 136 of the Constitution

The judgment (20 pages) by the Markandey Katju-R.M.Lodha Bench making a reference to the Constitution Bench to determine the contours of Article 136 can be read at the Supreme Court's site. [Mathai @ Joby v. George, delivered on March 19, SLP(c)7105/2010]. The Bench relies heavily on the recent Mr.K.K.Venugopal's R.K.Jain Memorial Lecture. Paragraphs 21 and 22 of the judgment sum up the Bench's views on the matter. I am reproducing the two paragraphs here:

21.Mr.Venugopal has suggested the following categories of cases which alone should be entertained under Article 136 of the Constitution.

(i) All matters involving substantial questions of law relating to the interpretation of the Constitution of India;
(ii) All matters of national or public importance;
(iii)Validity of laws, Central and State;
iv) After Kesavananda Bharati,(1973) 4 SCC 217, the judicial review of Constitutional Amendments; and
(v)To settle differences of opinion of important issues of law between High Courts.


22. We are of the opinion that two additional categories of cases can be added to the above list, namely (i) where the Court is satisfied that there has been a grave miscarriage of justice and (ii) where a fundamental right of a person has prima facie been violated. However, it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised.

Goodwill and dialogue

I found Nirupama Subramanian's parting piece on Pakistan poignant. I especially found this paragraph very relevant for the way we tend to discuss issues facing us within our own country:

But at the end of the day, the goodwill I experienced in my daily interactions with ordinary Pakistanis, even during the most heated debates, was overwhelming and more powerful than anything else. Despite the heavy hand of the state in every sphere of life, I found people who were willing to set aside long internalised stereotypes and prejudices about Indians and Hindus to try and understand me and my point of view, and they accepted with good faith that I was trying to do the same. We may not have entirely convinced each other every time but we managed to build little bridges of our own and find our own modus vivendi.

How often, we (I mean the elite, the so-called opinion-makers) are willing to set aside our prejudices regarding one another, and try to understand the other point of view, despite known disagreements? Should disagreements dissuade us from publicly discussing the merits or otherwise of those disagreements? Is the purpose of the discussion not served, if the other person is not entirely convinced about the merits of an argument? This is something which we need to learn from our friends in Pakistan.

Saturday, March 20, 2010

Rajya Sabha debate on WRB

Apart from the controversial issue of sub-quota, the WRB is also discussed animatedly for its other features. One is the phenomenon of rotation of seats. Many analysts are concerned that this aspect is likely to sound the death knell of representative democracy, because the MPs will now have no incentive to nurture a constituency. It is interesting that the Jayanthi Natarajan Committee considered this issue, but rejected it finding no merit in the argument. I too don't find any merit in this argument because if an MP had indeed nurtured a constituency which he or she might not represent after the next election, the voters in his or her new constituency or whenever he or she contests again after an interregnum, will positively consider this aspect, and hope that he or she would similarly nurture the new constituency too. In any case, nurturing a constituency is strictly not a legislator's duty, as he or she is expected to contribute to law-making rather than attend to municipal works in the constituency. How did the MPs in Rajya Sabha debate this issue (or debate this at all?). The readers can find it out themselves.
The debate is now available on Rajya Sabha site here,, here, here, and here.

Wednesday, March 17, 2010

Politics of WRB: An interview

Well-known journalist Vidya Subrahmaniam of The Hindu wrote a stimulating article yesterday on the politics of WRB. I thank her for responding to some of my questions on her piece here. Her answers fill the gap between the legal and political understanding of this historic legislation.

Q: You are optimistic that the same forces that brought the OBC men in large numbers into Parliament and the Assemblies will, over time, inevitably tilt the balance of woman power towards the more socially disadvantaged. Can you identify and be specific and perhaps elaborate about these forces? Can you also explain how they succeeded?

VS: The forces that brought OBC men into legislatures are the forces unleashed by Mandal. Mandal stirred up the electorate, brought in new awareness about subaltern identity, and gave a fillip to the social justice parties. As they started fielding more OBC candidates, others had to follow suit. The BJP for instance coopted OBCs, calling it social engineering. I have cited the figures in the U.P Assembly in the story. My case is that in a predominantly rural OBC constituency, you cant import a urban upper crust woman. Surely, it cannot be the case of the SP and the RJD that they will field upper caste, urban elite women in these constituencies?

Q:Both the Geetha Mukherjee committee report in 1996 and now the Jayanthi Natarajan report in 2009 support the need for quota within quota, and want the Government to examine it at the appropriate time. Therefore, the reluctance of the political class comprising the Congress, BJP and the Left to consider the pre-enactment stage as the appropriate time, to fill that gap is inexplicable to me.

VS: I am not opposed to sub-quota on principle but I'm convinced that it is a ploy to scuttle the bill. For instance, Mulayam says he wants sub -reservation within the women's quota not just for OBCs, but also for Muslims, Christians, Sikhs, Parsis etc. There are constitutional difficulties in enacting such a bill. There is no quota for Muslims or other religions in the general category, courts have repeatedly struck down religion-based reservation. The only way to do it is to bring them into the OBC quota, which will again be opposed by the Yadavs. They do not want the bill. Period. And they will do anything and everything to stop it.

Q: You suggest that the parties can individually take the initiative to nominate more women candidates from the OBCs and other underprivileged sections. The same argument can also be advanced to suggest why we require this bill at all. If the Bill's objective is to ensure greater representation of women, then the parties, on their own could have ensured that they field enough women from winnable seats. Since it doesn't happen, the WRB is considered necessary. The logic of competitive populism could have been expected to play a role here also. But it is obvious that the logic is impractical, because there is no level-playing field, where all the parties are equally convinced about the merits of fielding more women candidates. The question of who will bell the cat first will remain to be answered because the party which takes such initiative, so as to set the ball of competitive populism logic rolling, will have to accept certain risks, including inability to capture power after the elections. Had the UPA done so at the 2009 elections, it could have very well faced that risk.

VS: There is substantial evidence to show that women candidates have a better winning rate than men. This is so across parties, and holds true even for SP, BSP and the like. But fielding more women will cut into male seats, hence the resistance. Sonia and Sushma ought to have over-ridden objections but the fact that powerful as they are even they have not been able to do it shows how patriarchal our system is. If the bill becomes law, then they will all have to field women compulsorily. The question is: Can they afford to give ticket to just one kind of women? I am saying they cannot. But politics is also about symbolism. Which is why it is important for Congress and BJP to say that they will proactively allot ticket to OBC, Muslim women etc. It is simply not enough to say that it will happen automatically. If you want to seize the initiative from your opponents, you have to beat them at their own game.

Q: While exposing the parties' double-speak on the WRB, you have not explained WHY the parties are reluctant to voluntarily field more women candidates, if the logic of competitive populism is so compelling. Is it due to the parties' ignorance or some other reason?

VS:Mainstream parties do not allot ticket to women in greater numbers because parties are patriarchal, and women cannot be accommodated without displacing men, which is asking for trouble as you can see from the opposition to the bill. OBC parties are being duplicitous because they do not want the bill, and they are simply couching their gender bias in demands for OBC-minority reservation.

Q:The logic of competitive populism will also apply to SC/ST reservations in general. In principle, therefore, you end up questioning the relevance of these quotas as well, because the parties are smart enough not to ignore the social composition of our electorate, and their razor-sharp understanding of politics would have led to fielding enough SC/ST candidates as well. The underlying logic, therefore, is that castes and groups don't vote en bloc to the candidates hailing from similar castes or groups. This is what successive elections have revealed. Instead, they judge candidates' merits on various grounds which include caste considerations. It is not clear why competitive populism and parties' understanding of caste dynamics, besides the need to harness diverse social and caste interests to ensure electoral victory should be ingredients of successful strategy in the case of OBCs, but not so in the case of SCs and STs.

VS: I am sure you know that the SC/ST case is entirely different from the rest. The Constitutional special provisions in their case is not a new thing. The framers of the Constitution believed them to be historically oppressed. The institutional prejudices against them still exist, and no government will dare undo reservation for them -- even if their numerical strength and their political importance render it imperative for parties to field them.

Q: Your data on the number of OBC legislators in U.P.stop with 1993. There is a need to compare data especially after the onset of sarvajan politics. Unlike the South, in the North both the OBC and the forward castes are more or less evenly placed. The more than satisfactory representation of OBC male legislators is perhaps due to the higher male literacy rate, which has enabled their better political participation. The question is when we have similar quota for OBCs in local bodies, why deny the same in higher representative bodies. To ask for reservation for OBCs for general seats, before the WRB is a reality, may be misplaced because OBC males are already better represented. On the basis of poor representation of women in general, the apprehension that OBC women may not get representation sufficiently under the WRB appears to be valid.

VS: Why don't OBC men want reservation for themselves? Because their numbers will come down if they are bound within a quota. Why do they insist that the same logic will not apply to OBC women? Not all OBC men are highly literate. If that were the case, then they should accept the creamy layer logic and agree to the exclusion of literate OBC men from OBC job quota. The truth is they want to have their cake and eat it too. Besides, as I have gone to great lengths to explain, the Yadav parties want reservation for OBCs and minorities. The bill will surely get stuck if the latter demand is to be met, and indeed that is the idea behind making such a demand.

Update: Today's (March 18) Indian Express carries an article, based on empirical findings, to suggest that absence of quota for OBC women and Muslims did not result in their underrepresentation in the local bodies. An opposite view is canvassed by this EPW edit, which of course, does not cite any evidence to buttress it.

Tuesday, March 16, 2010

Accountability Initiative Internships

The Accountability Initiative, Centre for Policy Research, New Delhi invites applications for a summer internship programme offering internship positions to interested MA and M.PHIL students. Case Studies on Accountability Internship: Recent years have seen significant changes in the design of social sector schemes and programmes. Flagship schemes such as the National Rural Health Mission, Sarva Shiksha Abhiyan and the Mahatma Gandhi National Rural Employment Guarantee Scheme have inbuilt institutional mechanisms for accountability. But how are these mechanisms working on the ground? And are they effective? The Accountability Initiative wants to document the implementation of these new mechanisms through a series of case studies. Interns would be assigned a particular case study and required to undertake desk and field based research over a five to six week period.
Duration: The internship will be for five to six weeks from mid May – end June 2010.
Qualifications:
• MA and M.PHIL students with a preference for those studying sociology, political science, history, economics, development studies, law and journalism;
• Strong research and analytical skills;
• Strong writing skills;
• Interns must be willing to travel for up to two weeks of the internship;
• Knowledge of vernacular languages (please specify in your application);
Compensation: Interns will be paid a stipend to cover their expenses.
Application Requirements: Please submit a resume and cover letter along with a writing sample and one reference to Mandakini Devasher at info@accountabilityindia.org. Please specify “Case Studies Internship” in the subject line of the email.
Applications Deadline: Applications will be accepted on a rolling basis. The last date for submitting applications is 1 April 2010. Only shortlisted candidates will be contacted. For more information on the Accountability Initiative log on to our website: www.accountabilityindia.org.

Women's Reservation Bill: Is ratification by state legislatures necessary?

The Women's Reservation Bill has been the subject of much political controversy over the last decade and a half. Notwithstanding the merits of the bill, which have been debated in the media and also previously discussed on this blog, in an unprecedented move, the bill was passed by the Rajya Sabha a few days ago. The passage of the bill was enabled by unity across the political spectrum, with the news media presenting us with unlikely pictures of Brinda Karat, Sushma Swaraj and Jayanthi Natarajan holding hands while applauding the passage of the bill.

However, even though the bill is one step closer to becoming law, its becoming so is by no means guaranteed.  It faces stiff opposition from various political parties that have a larger presence in the Lok Sabha as compared to the Rajya Sabha. Even after passage in the Lok Sabha, it is widely believed that the bill insofar as it seeks to reserve seats for women in the state legislative assemblies, would require ratification by at least half of the state legislative assemblies. Given the lack of clarity on this issue, the government has decided to tread the more cautious route and seek ratification by state legislative assemblies. 

PRS Legislative Research has taken the stand that the bill does not require ratification by state legislatures to become law. Their interpretation if true would certainly reduce the logistical and time delays inherent in the requirement for ratification by state legislatures.  On their blog, they have argued that none of the conditions stipulated in Art 368 of the Constitution as requiring ratification by state legislatures is implicated in this case. The relevant provision is Art 368(2) (d) which requires ratification by at least half of the state legislatures in case the law passed by Parliament seeks to make a change in the “representation of states in Parliament”.  

The question is whether one third reservation for women in state legislatures would in any way alter the representation of states in Parliament. The answer to this question depends upon the interpretation of the word “representation”, as well as upon how the reserved seats are determined, allocated and rotated because conceivably this could have some impact on the representation of states in Parliament. The Women's Reservation bill does itself does not make provision for the allocation and rotation of reserved seats. The law Minister M. Veerappa Moily has made it clear that the government would bring a fresh law after the women’s reservation bill becomes a law to decide which seats would be reserved and “all other matters related to its implementation”.

However, it would be interesting to hear what people think about the PRS view on this issue.  One thing is clear however. Even if the Women’s Reservation bill is passed by the Lok Sabha in the near future, it faces numerous political and administrative hurdles thereafter. Consequently, considerable time may elapse before greater representation of women in Parliament and state legislatures (even assuming that this is the best way to go about achieving it) becomes a reality. 

Monday, March 15, 2010

Curative Petitions: The first-ever success

The Supreme Court has given relief to a curative petitioner for the first time since it was introduced, in this case on March 9. Imagine if Justice Pasayat had given death penalty in this case, when it was first decided by the Supreme Court, and the sentence duly executed, what would have been the decision of the Supreme Court on the curative petition? Is it not the right time for the Supreme Court to review the constitutionality of death penalty afresh in the light of the success of this curative petition?

Sunday, March 14, 2010

The changing face of Sovereignty

By Nina Nariman, III Year, LL.B., Campus Law Centre, Delhi University.

[Synopsis of the lecture delivered by Dr. Stewart Motha, Professor, Kent Law School on March 10 at Campus Law Centre, Delhi University. Motha is the editor of Democracy's Empire]

Dr. Motha’s lecture dealt with the idea that parliamentary supremacy in the United Kingdom has been ‘de-positioned’, i.e. that Parliament is no longer the all- powerful sovereign, but rather, has had to yield this sovereignty to other organizations and individuals.

This notion of parliamentary sovereignty is what Dr. Motha went on to analyze as the primary focus of the lecture. According to him, with the advent of the European Union, parliamentary supremacy has undergone erosion. The Treaty of Rome, 1957, which established the European Economic Community (the precursor to the European Union), created a province of law where European law is supreme. With the European Communities Act, 1972, British Parliament allowed for the application of European Community Law in England. This, according to the Professor, was a classic challenge to the Westphalian model of sovereignty.

He illustrated this with an example: the sharp tension between the efficacy of European Community Law and the supremacy of Parliament was first seen in the enactment of the Merchant Shipping Act, 1988 by the conservative government of Margaret Thatcher, wherein it was laid down that Spanish vessels would not be given free movement within British waters – this violated European Community Law. This led to the Factortame case in which, for the first time, the Judicial Commission of the House of Lords (now the Supreme Court of the United Kingdom) injuncted an Act of Parliament, showing that court had the power to review an Act of Parliament if it came into conflict with European Community Law. Thus, the emergence of the new European Community led to the displacement of Parliamentary sovereignty in United Kingdom. With reference to India, Dr. Motha showed that this situation would not arise in India because the Indian Constitution reigns as sovereign, and neither Parliament not the courts stand above it.

He went on to show that while at the macro level, Parliamentary sovereignty was being challenged by the advent of the European Community, at the micro-systemic level, the ungovernability of science and genetic technologies was posing a similar challenge. The Human Fertilisation and Embriology Act, 1990 laid in place a mechanism whereby major decision were left to a ‘quango’ (quasi-autonomous non-governmental organisation) consisting of experts. These experts had the power to determine, for instance, whether or not a foetus should be used only as an end in itself or can be used for other purposes like its medicinal value. Thus, in such cases there is rule by experts not rule by law. He supplemented this hypothesis with the example of the rule that after a 14 day period, a human embryo used for research must be destroyed, as laid down by the quango. Here, experts and not political persons are determining questions of policy in the ‘ungovernable’ field of science and technology yielding further ground in the sovereignty of Parliament.

The talk was followed by an interactive session between him and the students and faculty present. Questions regarding the legitimacy of wars like the Iraq war, where one ‘sovereign’ (George Bush of the United States or Tony Blair of the United Kingdom) had the power to unilaterally declare war were raised, showing that the classical ‘sovereign’ – one who can unilaterally make a decision that will affect all those he rules – was far from dead. Dr. Motha in reply said that the legitimacy of the war was beyond the ambit of this talk and that such examples of the classical sovereign still exist. However, in his opinion, this type of example becomes an exception to the rule that classical sovereignty is in fact gradually being eroded.

With the arrival of scientific research, aspects of regulation are left to experts where they determine matters of policy. For instance, in research being conducted in areas like cloning the decision of an expert in the field becomes seminal, removing the role of the archetypal ‘political’ sovereign.

Dr. Stewart Motha concluded his discussion with the thought-provoking statement that this analysis of the shifting planes of sovereignty could allow for more scholastic attention to be devoted to areas within the law outside of traditional parliamentary sovereignty like non-governmental autonomous bodies.

Book on Health Providers in India


Many may consider this as a strange contribution to a book unrelated to my interests. My article on the character of anti-Mandal agitation of 2006-07 appears in this book edited by medical practitioners, Kabir Sheikh and Asha George, to be published soon by Routledge. The editors invited me to contribute a chapter to their book, despite my initial reluctance,after having been inspired by my article in Frontline. However, as the project proceeded, I found them hard task masters, always keen to bring out the best from me. Contributing to an edited volume is both a learning and a humbling experience. The chapter, which I contributed,appears under the title,'The Dynamics of Medicos' Anti-Reservation Protests of 2006'.

Saturday, March 13, 2010

WRB: Is states' assent mandatory?

There is a widespread view that the amendment of the Constitution enabling reservations for women in state assemblies and Lok Sabha will require ratification by state assemblies under Article 368 of the Constitution. At the PRS blog, Anirudh, however, challenges this view in this post.

Babita Puniya v. The Secretary & ANR.

The judgment, coming close on the heels of the passage of the Women's Reservation Bill in Rajya Sabha, merits close scrutiny. Rajeev Dhavan and Bipin Aspatwar offer an interesting perspective on this here.

CPR v. Brahma Chellaney

The Delhi High Court's Division Bench [Coram: Justices Sanjay Kishan Kaul and Mool Chand Garg] has delivered its judgment in the case (LPA No.220 of 2002 decided on 12.3.10). The Court has held that CPR cannot be excluded from the jurisdiction under Article 226. I think the primary reason why the CPR wanted the Bench to settle the issue was because it was central to its autonomous functioning. Looked at from that perspective, is the judgment a setback to the autonomy of institutions like the CPR? I invite readers' thoughts on this issue.

Wednesday, March 10, 2010

Women's Reservations

The Women's Reservation Bill has, justly, invited much interest and celebration. The passionate supporters and opponents are legion, but I've struggled hard to find a nuanced perspective on the entire matter, until I read Pratap B Mehta's op-ed in the Express (here).

I think the op-ed is spot on, and captures what may distress people - who strongly support women's rights and empowerment - about the Bill. I liked this para in particular:

"The third issue is a normative one. We know that in terms of how power operates in society the idea that we are free and equal as individuals is a fiction. All kinds of hierarchies of gender, caste and class characterise the operations of power, and in a healthy polity these need to be redressed. Affirmative action is often necessary in this context. But Indian politics has been dangerously close to enshrining other normative propositions that are dangerous for democracy. The first is the equation of identity with reason, where the assumption is policies track the identities of those who promulgate them. This is often true as a matter of fact, but legitimating it into an organising principle is detrimental to the idea of public reason. It needs to be asked whether it befits a free society to restrict the choice of candidates available to particular constituencies based on particular identity. While it could be argued that de facto this choice is restricted for a whole host of reasons anyway, there is still a great deal of difference between a de facto reality and a dejure acceptance of a principle that it should be restricted."

Monday, March 08, 2010

Free Speech Debate: Response from Pratap Bhanu Mehta

I thank Pratap Bhanu Mehta for the following response to my previous post. I am also giving my brief reply to him -VV.

Dear Venkatesan,

I admire your thoughtful response on your blog. But I also think it shows what has gone wrong with our discourse on free speech. I just want to clarify a few points.

1. In a strict definitional sense, no one defends an “absolute” freedom. For example some versions of hate speech will need to be prohibited in any democracy. Certain kinds of violent pornography could also be regulated. Of course at one level, this will have to be determined on a case by case basis. The whole attribution that advocates of free speech are defending” absolute freedom is beside the point.

2. Much of the “advocacy” for raising the bar against regulating speech comes from the context. If you cannot write a book on Shivaji, or a Sahitya Akademi nominated novel is under legal threat, something is going wrong.

3. YOU attribute to me a position called “philistinism”. You are free to do so, but I am not sure how you can arrive at that judgment without knowing anything about my artistic or literary judgments. In so far as I have an aesthetic it is premised deeply on making qualitative distinctions. I worry that democratic discourse does not often make these distinctions. But it does not follow from that fact that these distinctions can be the basis for legal prohibitions of speech. But that is the point. Courts should try and avoid being arbiters of taste, as far as possible.

4. Most of the free speech cases involve offending religious sensibilities. And although Courts routinely make a distinction between criticism of religion and offensive criticism, they have blurred the lines in a way that even criticism becomes difficult. I can also say that from a religious point of view I am quite offended by several works of art, which are often gratuitous. But it does not follow from that fact that they should be banned. Ridiculing and Lampooning are legitimate modes of social criticism.

5. Courts should also as far as possible avoid giving authoritative interpretations of religion and get into hermeneutical controversy over interpretation of religious texts. They have no competence to do so. I chose to comment on Bhasin, because it is an example of how the Courts land themselves into a mess even when they are trying to do the right thing. Instead of focussing narrowly on clear and present danger, or on hate, they spend pages trying to defend a reading of Koranic texts. In other cases (NCERT) Courts have even gone to authoritatively pronounce that all religions are one. Their reading may well be right, but it is beside the point. People should be free to think that religions are violent or oppressive. And much of what Courts is in line with an ideology that Courts promulgate that nothing in any religious text in any religion can be really itself offensive.

6. I was also commenting on a political dynamic. India has routinely banned books. But the fact that it does so gives groups all kind of incentives to mobilise and create public disorder. Second, there is dimension of competitive communalism that free speech discourse has created. If Satanic Verses can be banned, why not Dharamkaarana? If books on Muhammad, why not on Krishna and Draupadi? We are becoming less, not more tolerant. And we should ask why? What is the function of law in producing this outcome?

7. It is not philistinism that drives one to be sceptical of restrictions. It is actually safety. A society where people’s taking offense does not lead to immediate legal intervention or intervention by the state will be safer for liberty in the long run. The reason you let a lot of “bad” speech pass, is because you have the assurance that if even that stuff can pass, your rights will not be curtailed. But a society which prohibits publication of Satanic Verses, James Laine, Hans Demobowski (the last two are OUP books) – where Court cases are/ can be routinely used to harass authors, where the state caves in when artistic exhibitions are vandalised, where movie directors have to face the wrath of mobs, does not make you feel safe. That is why the bar on regulating speech should be very very high. If anything it is those who want to regulate speech that are being philistine by not acknowledging the threat to art and scholarship we face.

My reply:

PBM is correct that I cannot call anyone philistine without knowing about their artistic or literary judgments. I used the term -for want of a better term- to express what I thought about the ongoing discourse. Therefore, I did not mean anything derogatory about any of the commentators, whose articles I have linked, including PBM. In fact, I respect their contributions to contemporary public discourse. I am happy PBM has taken pains to clarify - what would not have been possible within the space constraints of a newspaper article - some of the misgivings that I have had.

Sunday, March 07, 2010

A serious setback to federalism

While writing an article on the Supreme Court's latest judgment on CBI,(Question of Domain) I realised that my previous post on this was perhaps an understatement. I had the opportunity to discuss with Anupam Gupta, who had written an excellent article (Profile of Federalism in Practice: Role of Judiciary) in the book, Principles, Power and Politics edited by D.D.Khanna and Gert W Kueck, (Macmillan, 1999). According to him, this judgment betrays a serious misunderstanding of our Constitution. The judgment also smacks of certain poverty of ideas, and ignorance of Constitutional scheme. First, Article 21 does not have a non-obstante clause. Therefore, how can this Article transcend all other provisions? Second, how can a limitation in the Constitution not apply to a judiciary? Everything in the Constitution is binding on all parts of the Constitution. The issue before the Bench was not a Constitutional amendment or the validity of a legislation. Therefore, bringing in the basic structure doctrine, to make Article 21 prevail over a Constitutional limitation giving effect to federalism simply makes no sense. Third, Judiciary owes its authority to the Constitution. Can the Supreme Court arrogate to itself a super Constitutional authority? It is conceptually awful to reduce the entire Constitutional scheme to Articles 21, 32 and 226 in the guise of judicial review. The sincerity and honesty behind the judgment are not being questioned, but the Bench could have found other remedies to achieve the same result.This judgment is sure to find its place, if one were to prepare a list of 10 worst judgments of the Supreme Court since the beginning.

The Husain-Taslima controversy: Philistinism in the guise of liberalism

I have closely followed the discussion in the media in the wake of the M.F.Husain-Taslima Nasreen controversy. First, I wanted to know how the Indian system (the courts and the executive together) has failed M.F.Husain that he had to seek refuge in a foreign country. None of the commentators helped me to understand this. So, I had to do my own research to bring out the truth in the latest Frontline (Artist's alienation)

My second interest was in understanding whether the commentators were correct in equating M.F.Husain with others who are similarly placed at the receiving end of the free speech debate. While I found varying degrees of support among the commentators to Husain, I noticed that there was one attribute which all of them shared, again in varying degrees: philistinism. This explains why Pratap Bhanu Mehta could not explain the boundaries of artistic freedom, even while refraining from commenting whether Husain crossed those boundaries. I am equally a philistine, insofar as I don't understand the intricacies of art or painting. But I have been able to understand why our yardsticks to evaluate the limits of freedom applicable to the Danish cartoonist or Taslima Nasreen cannot be identical to those we can adopt to evaluate the paintings of Husain. I am not suggesting that the opposition to the Danish cartoon or Taslima's article is rational; obviously, it is not. But my grievance is with the commentators who insist or suggest that Husain cannot claim any extra privilege by virtue of his being an artist or a painter.

PBM's plea for compliance with absolute principle of free speech is, for me, difficult to accept. Those who are aggrieved with Husain's paintings have a right to be aggrieved, but don't have the right to abuse the law, and threaten him with violence or court cases, in order to distract him from his primary obsession. Primacy to absolute principle of free speech will unwittingly legitimise the illegitimate litigation against Husain, and the system's failure to restrain those who threaten violence against him. Delhi High Court's 2008 judgment in the Husain case (by Justice Sanjay Kishan Kaul) had recommended specific legal reforms to protect artists like Husain from frivolous litigation.

For convenience, I am giving below the relevant contemporary links.


Vir Sanghvi's piece

Many shades of grey

Vinod Mehta's piece

Sandeep Dougal's Q&A:

Pratap Bhanu Mehta's 2006 piece and his March 4 piece this year in the wake of Husain-Taslima controversy.

Swapan Dasgupta's piece in Telegraph