Thursday, October 28, 2010

Judicial Activism and the Bar

Asma Jahangir's election as the first woman President of the the Supreme Court Bar Association of Pakistan today continues to complicate the changing frontiers of judiciary/executive confrontation in Pakistan. The election was hotly contested with Jahangir scoring a narrow victory over Ahmad Awas by 38 votes.

While Asma Jahangir's credentials as a lawyer, human rights campaigner and public intellectual are impeccable, the election was also viewed as the playing out of two different but interlinked political movements. Some have viewed this as a conflict over over liberalism, with her opponent being as close to the religious right factions of the bar. Others, including her opponent have tried to present this as a debate over judicial activism. They have argued that Jahangir is the proxy government candidate, who hope that her victory will help them reign in Chief Justice Chaudhary and the Supreme Court. Jahangir had participated in the protest over the dismissal of Justice Chaudhary but had oft late urged judicial restrain and asked the court and the bar to restore neutrality. Commentators have deplored the politicization of elections to a professional association. This politicization and sustained media interest is not surprising.

Scholars of comparative law are only recently drawing the linkages between the bar and judicial activism. Terry Halliday, Lucien Karpik and Malcom Feeley have emperically established a connection between independent legal profession and the existence of social and political liberalism. They argue that an independent bar, even staffed with the most conservative lawyers, will come to the defence of basic political and civil liberties in a repressive regime.

I have come across very little research on the politics of the Indian bar, and would be grateful if I could be directed to any. I was also curious if the readers, most of whom have greater familiarity with daily legal practice, would agree with this formulation. Do Indian bar associations take up questions of judicial behavior or independence?

Tuesday, October 26, 2010

Remembering Ismail Farooqi: A Reflection on Bannerjee and Yadav

In their recent incisive post, Bhupender Yadav and Vikramjit Bannerjee raise several questions about the use of colonial precedent and judicial faith which deserve reflection and further discussion.

1. As they establish, there is clearly long precedent from the colonial period of judicial intervention in cases of faith, but given what we know about the role of the colonial state in creating and fostering communal differences, is this good precedent? Scholars have demonstrated that the colonial administration of personal laws for instance was instrumental in the homogenizing of communal identities?

2. Colonial courts relied on religious texts to establish the ground rules of faith. They occasionally admitted oral evidence and evidence of practice, but I am yet to come across a case that use archeological and material evidence. The uses of texts is not unproblematic. Take for example, the Hedaya which emerges as the standard reference on Muslim law in colonial India, and is relied upon by authors as diverse as Fyzee and Paras Diwan. When the colonial courts began to administer
Islamic law in the late eighteenth century, they chose to rely on the al-Marghinani’s al Hedaya,a medieval manual of Hanafi law. Compared to other medieval
Hanafi fiqh texts, the Hedaya did not consistently provide the logic and
reasoning behind the rules of the school. Instead of relying on the original
Arabic text, the courts relied on Charles Hamilton’s English translation of a
Persian translation of the original Arabic version. This four-volume text itself was pared down in the 1870 edition in the interests of cost and utility, and the portions
“more interesting to the antiquarian . . . than useful to the practitioner” were expunged.

What are we then left with? It is this much pared down text that the Supreme Court relies on for instance in Muhammad Hanif Quereshi when it determines that cow slaughter is not an integral part of Islam.




3. The case is presented as a civil suit between faiths, or rather between a faith and a party i.e. the Wakf Board. If this is seen as a civil suit where one party is the Hindu faith, then the question of whether a single party can speak for the faith arises? If this is to be adjudicated as a dispute between faiths, surely the Court needs to implead other parties whose rights and beliefs are effected (those who believe in the two other Ram Jamnasthans in Ayodhya, those who believe that Ram is everywhere and not tied to one place, those who protest the idea of idol worship), and going by other civil suits where third party rights are affected, this would have required newspaper advertisements spelling out the rights and asking parties to step forward?

4. During the debates over the Shahbano judgment several commentators had pointed out, and I am in broad sympathy with them, that the protection of group rights must also provide for the protection of rights of individuals within a group. Does this faith based approach to a civil suit then take into account the rights of other Hindus? (those who believe in the sanctity of the two other Ramjamnasthans at Ayodhya, those who oppose idol worship, those who believe that it is an insult to Ram to fix him to a geographical area)

5. Bannerjee and Yadav, in both their posts emphasize (rightly so) that the court was in some ways limited to the grounds raised by the Sunni Wakf Board. However, what they do not point out, is that the Wakf Board itself was prevented from raising several other grounds due to the Ayodhya Land Acquisition Act and the Ismail Farooqui judgment.

While Justice Verma's pronouncements on the sanctity of Mosques has been quoted, it is perhaps important also to note the powerful dissent of Justice Bharucha (he was joined by Justice Ahmadi, the only other minority judge on the bench).

Justices Ahmadi and Bharucha struck down the Ayodhya Act of 1993 as unconstitutional citing in particular s. 4, whose effect was that " the Sunni Wakf Board, which administered the mosque that was housed in the disputed structure, and the Muslim community lose their right to plead adverse possession of the disputed site from 1528 until 1949, if not up-to-date, considering that the idols remained in the disputed structure only under the orders of the courts. " Thus, the only ground on which the Wakf Board could litigate was whether a previous Ram temple stood on the stop of the Mosque.

They held that this was unconstitutional as it 'offended the principle of secularism', which is a part of the basic structure of the Constitution, being slanted in favour of one religious community as against another.

6. Bharucha and Ahmadi in a particularly scathing paragraph pointed out that it was clear that the government did not intend to be bound by the judicial decision (thus proving that it is the state that is alienated from the judiciary)and sought to use it only as a 'springboard for negotiations'. "It leaves us in no doubt that even
in the circumstance that this Court opines that no Hindu temple or Hindu religious structure existed on the disputed site before the disputed structure was built thereon, there is no certainty that the mosque will be rebuilt."


7. I agree with Bannerjee and Yadav that the judgment is central in determining public faith in the courts. Justice Bharucha seems to have been prescient when he noted that the court of law was not competent to answer such a question.
"the Court being ill-equipped to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides that it was rendered without hearing them or their evidence. This would ordinarily be of no significance for they had chosen to stay away, but this opinion is intended to create a public climate for negotiations and the criticism would find the public ear, to say nothing of the fact that it would impair this Court’s credibility." I note that the situtation before the Allahabad High Court was a little different, since both sides were allowed to read evidence but this does not appear to be the case with the ASI report which appears to be main evidence establishing the location of the prior temple. The historical evidence (and its use is questionable) merely establish that Ayodhya is the birthplace of Lord Ram (though it is doubtful whether the Ayodhya of the Traita Yuga, two cosmic cycles ago is the same location as the Ayodhya of now). What is actually contended is the exact location of the temple.


I close with Justice Bharucha's words

"Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it."

Monday, October 25, 2010

Guest Post: Faith in a Civil Suit and the Fundamental right to religion

Rohit De's recent posts have drawn attention to various aspects of British colonial interventions into the legal domain in colonial India. This guest post points out the contemporary significance of British colonial interventions in the sphere of religion, by focusing on the implications of a continuous line of case-law dating from the colonial era for the issues in the recent judgment of the Allahabad High Court in the Ayodhya case.

In their previous guest post, Bhupender Yadav and Vikramjit Bannerjee, the lawyers for Sri Ram Lalla Virajman and some other Hindu parties in the Ayodhya case, drew attention to the pleadings and the issues framed in the suits before the Allahabad High Court. In this follow up post, they seek to make good their claim by relying on case-law that they assert dates back to the colonial era:
............................................................................
There have been discussions especially by venerable academics and media commentators that faith has no place in civil litigation. The question is, is this true? To answer that question, it is important to note that the Courts have, at least from the time of the Company Raj, dealt with the faiths of India through the courts and the law, which lead to continuous resentment amongst the governed as to foreign interference in their religious affairs. Therefore post the Great Revolution of 1857 (which was substantially attributed to religious resentment), the British Government was forced to directly take over the government of country ending the reign of the Company Bahadur. Queen Victoria issued her famous “Proclamation” to her Indian subjects in 1858 which was to govern the policy of the British Raj henceforth, which included the following amongst other policy statements:

“ Firmly relying on the truth of Christianity , and acknowledging with gratitude the solace of religion , We disclaim alike the right and desire to impose Our convictions on any of our subjects. We declare it to be Our Royal will and pleasure that none in anywise favoured , none molested , or disquieted by reason of their religious faith or observance ; but that all shall alike enjoy the equal and impartial protection of the law , and We do strictly charge and enjoin all those who may be in authority under Us, that they abstain from all interference with religious belief or worship of any of our subjects , on pain of our highest displeasure.”

The British Courts thereafter came up with a very nuanced manner of dealing with religious belief, holding that the Courts can adjudicate on matters of religion but will not test the rationality of the belief system, which is genuinely held. The courts essentially decided the questions which were placed before them based on the belief system from which the disputes arose. (Syed Asrar Ahmed v. Dargah Committee, Advocate General of Bombay v. Yusuff Ali Ebrahim and Jamshed Tarachand v. Soonabai). After independence that has been the view of the Supreme Court as well. Saraswati Ammal v. Rajagopal Ammal has specifically held what is a religious purpose under the Hindu law must be determined according to Hindu notions.

In Bijoe Emmannuel v. State of Kerala, which dealt with the refusal of some children of the Christian Jehovah’s Witness sect to sing the national anthem, the Court held:

“….(t)hat the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”

The question therefore of the conflict of reason and faith or law or faith is a non issue because the court cannot go into it at all, it can only go into the fact as to whether such a belief is genuinely and conscientiously held, that is all.

In order to consider as to what constitutes “essential or integral part” of a certain religion, the Supreme Court has held that it has to be determined with reference to doctrines, practices, tenets, historical background of that religion. ( Commissioner of Police v. Acharya J. Avadhutananda).

Coming back to the present case, the Supreme Court in Ismail Faruqui v. Union of India (the Ram Janmabhumi case) famously held:

“ While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.”

The Court in the same case also specifically discounted the argument of the Muslim parties that “once a Mosque always a Mosque” based on a long line of judicial authorities

Now, the fact that Bhagwan Sri Ram is an integral part of the religion of Hindus and Hindus believe that Bhagwan Sri Ram was born in Ayodhya has been specifically admitted unanimously by all the parties to the present civil suits, the only dispute was to as to whether Bhagwan Ram was born at the site and whether the Hindus considered the place to be Ram Janmasthan . This admission is recorded by Justice SU Khan in his judgment at page 233:

“ At this juncture, it may also be noted that Sri Zafaryab Jilani, learned counsel for Waqf Board and other Muslim parties had given his statement under Order X Rule 2, C.P.C. on 22.4.2009 and categorically stated that his parties did not dispute that Lord Ram was born at Ayodhya (previously this was also an area of dispute between the parties). Sri Jilani during arguments repeatedly contended that it was not disputed that Lord Ram was born at Ayodhya, however he very seriously disputed the assertion that Lord Ram was born at the premises in dispute. Similar statement under order X Rule 2 C.P.C. was given on the same date by Messrs M.A. Siddiqui and Syed Irfan Ahmad learned counsel for other Muslim parties.

The statement is quoted below:-
“For the purposes of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever…………..””

The fact that the Hindus held the disputed site as the birthplace of Bhagwan Ram therefore had to be proved by evidence and that the said site was considered to be integral to the Hindu religion had also to be proved by evidence , which was done in the present case . The question of rationality was never in issue and could not be an issue anyway.

The Muslim parties never stated in any of the pleadings that the supposed Babri Masjid had any special significance in Islam. In fact it is recorded in Ismail Faruqui v. Union of India that the said Babri Mosque had no special religious significance for the people who followed Islam.

Civil Courts have the power to adjudicate on questions of violations of fundamental rights under Article 25 and 26 of the Constitution in a civil suit (Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma). Therefore, in the present case, the Court was asked to consider a broader question of weighing a claim which showed that one religious group had treated the site as an integral and essential part of their religion and another claim of those who though held it to be supposedly a place of worship however never contended that it was either essential or integral part of their religion.

The Allahabad High Court felt that it was called to tender relief “ex debito justitiae” that is to come to a conclusion which administers justice between the parties which is a condition precedent to granting injunction in any civil suit and so in it’s own peculiar way tried to strike that balance . As Justice Sudhir Agarwal therefore noted in his judgment:

“ 4559. Plaintiffs have sought a declaration that the entire premises described vide Annexures- 1, 2 and 3 belonged to the plaintiffs deities and also a permanent injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any restriction on the construction of the new temple at Sri Ram Janambhumi Ayodhya. We have already held that the area under the central dome of the disputed construction believed and worshipped by the Hindu people as the place of birth of Lord Rama and they were worshiping thereat since time immemorial. This part of the land constitutes deity, "Sri Ram Janamsthan", and a place of special significance for Hindus. Therefore it has to be treated in a manner where the very right of worship of Hindus of place of birth of Lord Rama is not extinguished or otherwise interfered with. We have simultaneously held that so far as other land within the inner courtyard of the disputed structure is concerned, this open land had been continuously used by members of both the communities for their respective prayers and worship for decades and centuries.

4560. Though the prayer in the suit is worded in the different manner but for complete justice and to avoid multiplicity of litigation as also the adjudication which may settled centuries old dispute finally, we are of the view that we can mould the wordings of the reliefs and can pass an order in respect to respective parties in this case which as suuch may not be covered by the form of relief but is within the scope of the case. In this regard we can rely on the provision under Order VII Rule 7 CPC.”

In our view, whatever be the legal merits of the trifurcation of the land (and there are serious legal objections to that), it is time that there is a serious discussion on the underlying issues since this judgment has the potential of either being the starting point for a grand reconciliation between the two major religious communities in India or it may be the starting point to a complete alienation of the majority community from the apparatus of the state and the judicial process. In all this bluster that is something which we should think about seriously.

Alibi's of Empire



Karuna Mantena's first book, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism joins a growing conversation around the British codification of law in India. Mantena, a political theorist by training, is interesting in examining the tension between liberalism and empire, particularly when the supposedly universal values of liberalism (free markets, equal rational individuals etc) and the cultural difference of empire. As a rich body of scholarship has uncovered English Benthamite utilitarians came to dominate the project of law reform in India and their universalist claims had to content both with the imbalance of power and the cultural differences between India and Britain.

Mantena focuses on the career of Sir Henry Maine, lawyer and historian, who served as the Law Member on the Viceregal Council between 1861 and 1869. His tenure saw the completion of several codes that had been proposed by Macaulay in 1832 and made several contributions to the development of the Indian Contract Act, the Native Converts Act, the earliest divorce and civil marriage laws, the Evidence Act, the decentralization of finances and the growth of municipal administration as well as thorny questions over the interpretation of treaties with the princely states. In his classic, Ancient Law, Maine put forward his theory of social development stating that the movement in progressive societies was from 'status to contract'. He therefore explained the development of the notion of 'bundle of rights' in property and the growth of primogeniture and wills in managing property.

Mantena argues that Maine was a central figure in the turn from a liberal universalist to a more cultural relativist understanding of empire and legal transformation. His reading of differences between traditional and modern societies and his arrival in India after the revolt of 1857, shaped his views on legal change in the colony. The attempt was to preserve and work with 'traditional structures' and social systems, which were earlier viewed as impediments to development. Mantena, provides evidence of this through her close reading of Maine's policies towards land revenue, property law and customary law, particularly in the case of Punjab. Scholars like Radhika Singha and Neeladri Bhattacharya have shown that this attempt to preserve traditional orders and social customs, actually led to the 'invention' of new customs.

A more thorough review of Mantena's work, especially on Maine's failiure to bring about a uniform civil code can be found in Ishita Pande's review in this weeks EPW EPW.

Needless to say, in an era of global legal reforms and attempts to transplant legal institutions, it is critical to examine the first global rule of law project i.e. in the British Empire.

Sunday, October 24, 2010

The most pressing legal issue of the day?

I will sometimes ask students which right in the constitution they think is most important to Indians. Although I haven't done this exercise elsewhere, I suspect in the United States students there would answer the 1st amendment of the U.S. Constitution, or the freedom of expression, given its centrality in American history. In Germany, whose constitution was created in the wake of the horrors of WWII I think they would say article one, or human dignity. In India, the answer from students in my experience is almost invariably the same. First, they say most Indians do not know a single article, or right, in their constitution. Second, the students reply that if they did, Indians would answer that the right to life, or Article 21, is the most important. This is because the Supreme Court has interpreted it to require the government to provide the necessities of life to its citizens including food, health care, and education.

It's not that a typical Indian doesn't value free speech or equality. Many Indians, poor and rich, have fought, and even died, for these rights. Still, in my experience Indians tend to view the government's efforts to lift the population out of poverty as the core promise of the Indian state. Whether you talk to a day labourer in rural Madhya Pradesh or a worker in a slum in Mumbai, you hear it again and again: the government should be providing better schools, or clean water, or decent health care, and it needs to be much, much less corrupt.

With this in mind, in my opinion the biggest legal challenge in India today is not Ayodhya, or the constitutionality of reservations, or POSCO, or NAZ; even though these are all critical to how India's future will be shaped and in some cases threaten to potentially tear the country apart. Instead, I would argue that the largest challenge is to close the gap between what the law says and what is implemented. That is because without overcoming this issue the government cannot hope to use its policies to improve the standard of living of the bulk of its population. It will keep faltering on and breaking its promise.

So I read with great interest this morning that the National Advisory Council was finally moving ahead with the National Food Security Act, proposed legislation which has been discussed on this blog before. Few other pieces of proposed legislation in recent memory have had the potential to transform the lives of so many so radically. The thrust of the NACs recommendation that they will be used to help draft the NFSA was that 75% of Indians should have a legal entitlement to food grain under the Public Distribution System (PDS) - 90% of people in rural areas and 50% in urban. Instead of using the old BPL and APL categories, new categories of priority and general households will be created (and defined by the government) which will determine how much grain a household can claim.

Jean Dreze, also a member of the NAC, issued a letter stating his disagreement with the NACs . Amongst other reservations, he had been advocating universalisation of the PDS and argues the new categories of priority and general households in the proposal just continue the "artificial and divisive distinction of APL and BPL households."

These recommendations (which it should be made clear have not been consolidated and refined into any sort of draft bill) struck me as disappointing as well. For me, the real concern came in the lack of attention or details given to how the bill would actually be implemented. This dovetails with Dreze's argument (as I understand it) in some ways. Universalisation of PDS is often seen by its advocates as a way to bypass the massive difficulties that arise when you attempt to target a social welfare program in India - many families are miscategorized in what is often an expensive, corrupt, and often arbitrary process of targeting. If you are going to subsidize grain to 75% of the population, why not 100%, if the cost of targeting is so high and many of the 25% who don't need such grain would not show up to claim it anyway?

The merit of targeting versus universalization is for another forum, but if you are going to have a targeted system you need a clear vision in how you will implement it. The NAC's relative silence on implementation seems disturbing.

The UPAs recent answer to implementation problems has been to create legally enforceable rights to government programs - whether NREGA, or education, or information, and now food. This sounds promising: people now have the right to go out and claim a government program instead of having to rely on the whims of the administrative state to give it to them. However, as the NREGA experience shows very few people - especially the poor -have attempted to enforce these rights and there is no clear system in place to allow them to do so (the relative success of the right to information act in contrast is arguably the exception that proves the rule). Creating "legal entitlements" doesn't do anyone any good unless there are practical ways that the poor can use to enforce these rights, or there is a system in place to independently ensure these entitlements are given.

I do not think enough intellectual heavy lifting has been done in India to understand the relative merits of different administrative accountability mechanisms to close this implementation gap - whether such mechanisms are administrative tribunals, district courts, commissioner's offices, constitutional torts, administrative fines, independent prosecutors, legally empowered social workers, etc. I am not saying such a task is easy. Having thought some about the relative merits of different administrative accountability measures myself I can say it is certainly not a simple legal problem. Few legal problems require you to have such a detailed knowledge not only of the law, but also policy, different government institutions and their structures and cultures, and the attitudes and needs of the poor. It is easy to become overwhelmed when thinking about how one would go about controlling the Indian bureaucracy in a productive way for ordinary Indians.

I have found that a handful of economists (like Jean Dreze) have taken the task on of trying to figure out these administrative law problems, but to my surprise I have found very few lawyers doing the same. I am not sure why this is. Perhaps it's an undue fixation on the Supreme Court or High Courts being the center of the pressing legal problems of the day. Maybe it's because law schools do not really teach how to approach or reform institutions, but instead mostly still force their students to memorize treatises on black letter law with occasional discussion about how a case can effect policy. I may be wrong in my assessment and I hope I am. Still, my feeling is that the legal community needs more debate about and understanding of how they can help work to fill this implementation gap. After all, it may be the most pressing legal problem of the day.

[Note: If you do know of good work being done in the area of thinking about how administrative law can better be used to implement government policy please leave it in the comments section as I know I would be curious and others might be as well.]

Friday, October 22, 2010

How about 'partner'?

The Supreme Court's judgment in Velusamy v Patchaiammal yesterday drew sharp criticism from Additional Solicitor General Indira Jaising, and rightly so.

The case was about the the rights of an unmarried partner under the Domestic Violence Act 2005. The remarkable para 33 of the judgment is worth reproducing in full:

In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(see `Common Law Marriage' in Wikipedia on Google) In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.


Thus, the judgment clarifies the scope of the Act in its application to unmarried cohabitees. Although the conditions seem mostly sensible (except perhaps condition (c) which may exclude same-sex couples and unmarried partners of married persons), what is remarkable is that the judgment cites the anonymously-and-freely-editable Wikipedia as its source for laying down the conditions! Wouldn't it have been better for the court to draw upon other jurisdictions dealing with the same issues instead (see the Report of the UK Law Commission on Cohabitation, for example)?

The substance of the case aside, what angered Ms Jaising was the Court's use of the word 'keep' for the cohabiting female partner. Apparently, Justice Thakur responded by asking her whether the expression 'concubine' would have been more appropriate than the word 'keep'. With respect, Your Lordships, neither word is acceptable. 'Keep' denigrates a woman to the level of a man's property, while 'concubine' has demeaning connotations for a woman who is in a live-in relationship. So, what is the alternative? Many cultures have started using the word 'partner' for all long-term romantic relationships: unlike husband, wife, keep, concubine, etc it is a nice neutral term which does not disclose your sex, sexual orientation or marital status (and many cultures and jurisdictions are moving towards considering these markers as irrelevant to the respect and protection that a relationship deserves). Unlike 'boyfriend' or 'girlfriend', it connotes a certain seriousness and longtermliness that some couples may want to attach to their relationship. 'Cohabitee' could be another alternative, although it does not distinguish roommates from partners.

Whatever alternative we may settle on, I think it is important that our public institutions and functionaries stand up for much-maligned political correctness. Political correctness goes mad only when we start censoring comedians, cartoonists, writers and artists for taking un-PC liberties: unlike the state, their role is to offend, to make us uncomfortable.

Update: A reader who wants to remain anonymous has helpfully pointed out that the relationship at issue in the case was not what I have described as a 'partner', and that 'girlfriend' would perhaps be a more apt (and respectful) description. I am grateful for this correction.

The Rule of Law in Colonial India



Elizabeth Kolsky's, Colonial Justice in British India: White Violence and the Rule of Law recently published by Cambridge University Press is a significant intervention into understanding how criminal law comes to operate in India. Kolsky challenges the central justification of British governance, the promise of the rule of law as opposed to the rule of men. The British strove to justify their imperial project, and differentiate themselves from 'personal and arbitrary rule of the Oriental despot' and the 'cruelty and bigotry' of rival empires like the Spanish by appealing to the idea of the rule of law.

Kolsky specifically focuses on cases of white violence i.e. violence committed by Europeans (often planters and soldiers) upon natives to demonstrate that despite a rhetorical stance of legal equality, legal practice and conventions placed most Europeans in India above the law and, in effect, tolerated and condoned widespread physical assault and abuse. She argues that 'This violated the theory of equal protection that undergirded the rule of law and made law complicit in acts of racial violence rather than a guard against them'.

Her book offers much of interest to lawyers. particularly those who are interested in the codification of Indian criminal law. She traces the tensions between Utilitarian attempts at crafting a 'universal criminal law' and the specifics of the colonial context. For instance the first Code of Criminal Procedure secured the legal superiority of “European-born British subjects” by reserving to them special privileges such as the right to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments.

While there have been some challenges made to the colonial nature of our criminal law (most notably in the Naz Foundation case, and in the case of sedition), there has been little attempt to think through the context in which the Indian criminal codes were developed. Kolsky argues that the colonial context, and the 'notion of difference' between Europeans and Indians was central to the project of codificaiton.


It is interesting to note the differences that emerge between Indian criminal law and the law of crimes in Britain. For instance, the Penal Code's treatment of The Code’s treatment of interpersonal violence differed profoundly from that in English criminal law. As Jordana Bailkin points out,
As soon as the fact of killing was proved against a prisoner in England, the law assumed such malice on his part as to make the charge murder; the defense had to prove the facts extenuating the charge. In India, the burden was on the prosecution to show that the accused had had intention to kill.
Vernacular newspapers suggested that this ease of defence created a culture of impunity for whites in India.

The Penal Code also provided ways to read down the murder charges. The right of self-defense was expressed in wider terms in India than in England because of Macaulay’s concern about native laziness and passivity regarding physical attacks. A wide latitude on self defence was to help rouse 'manly spirit' amongst Indians. Culpable homicide was not murder if the offender was a public servant who had caused death by an act that he believed to be necessary for the discharge of his duties. If the accused committed the fatal act under grave provocation, then the charge was reduced. As Bailkin notes elsewhere, “Provocation” was not limited to the threat of physical force, but included such acts as failing to work in a speedy manner and using insulting language".

In contrast to English law, the law relating to provocation in India considered the 'relative physical strength of the participants and the ethnic and temperamental traits of the accused'. Indian law also allowed a lapse of time between the provocation and the retaliatory act. Overall, defendants could plead provocation much
more easily in India than in England.

Equally fascinating is Elizabeth Kolsky's engagement with early medical jurisprudence. She examines how a variation of the 'eggshell skull' defence emerged in colonial India, suggesting that native Indians often had enlarged spleens which would be ruptured even when faced with mild force. Thus, exonerating several Europeans who beat their servants to death.

Elizabeth Kolsky has been working on questions on race, violence and criminal law in colonial India for several years now. Her Phd thesis at Columbia University titled 'The Body Evidencing the Crime: Gender, Law and Medicine in Colonial India' examines through rape trials in India, the codification of criminal procedure, the development of medical jurisprudence and the admission of expert testimony in criminal trials. Comparing caselaw of the Bengal Nizamat Adalats and the Indian High Court's Kolsky made the striking discovery that as the colonial legal system became more 'rational and systematic' convictions of rape cases went down.

In her recent article in Gender and History, Kolsky persuasively challenges the narrative of British claims of legal reform that aimed at 'saving Indian women' through the analysis of rape law which "concludes that the modernisation of law and the development of a new medico-legal understanding of rape introduced evidentiary standards that placed a heavy burden on Indian women seeking judicial remedy in colonial courts. The fear imported from Britain of false charges combined with colonial views about Indian culture to make native female complainants doubly dubious." She contends that it is this colonial jurisprudence that has survived to devastating effect in postcolonial India and Pakistan in ways that are explored and explained by the author.

Kolsky's current research project examines criminal law in the North West Frontier Province and engages with ideas of tribe, frontier and Islam and the role they play in the constitution of criminal law.

Thursday, October 21, 2010

Delhi High Court: Dowry vs. Bribery

1. On October 20, 2010 the Delhi High Court in Pooja Saxena v. State held that a family that pays dowry in the fear that their daughter’s marriage will be called off if they do not make the payment, and in order to preserve the family's honor, will not be said to have committed an offence. The Dowry Prohibition Act, 1961 renders both giving and taking dowry an offence. While interpreting section 7(3) of the statute, the Delhi High Court has in its order recognized that the giver of dowry is in some circumstances a victim.

2. On September 24, 2010 the Delhi High Court in Aniruddha Bahal v. State held that a journalist who attempts to bribe a public official in a sting operation was not committing an offence under the Prevention of Corruption Act. Incidentally, the case involved the infamous cash for questions scam, from which at least one leading Supreme Court precedent has emerged [Raja Ram Pal v. Speaker] [discussed here]. The High Court recognized that there is an element of public interest in carrying out such sting operations: given the "fundamental right" to a corruption free system, and the corresponding constitutional duty to expose corruption.

The question which I wanted to put to debate was: are these two cases capable of being linked? Both cases recognize that under certain circumstances making a payment prohibited by law, either dowry or bribery, is justified. The dowry case recognizes that the person making the payment is a victim, who the law should not punish. The cash-for-questions case recognizes that the person making the payment did not “intend” to commit the crime, but acted in the public interest. The question is: can a bribe payer, in some limited circumstances, be seen as a victim of the system, who must either abide by its rotten conventions, or fall by the wayside?

Of course, one would find it extremely hard to consider the corporation which greases palms in order to do business in India, or the multinational accused of committing FCPA violations in India, a “victim” of bribery in any way, as opposed to a facilitator. But what of the common man? Is he, although to a much lesser extent than the family forced to pay its last rupee to marry their daughter off, a victim? I do not intend by posing this question to equate the grave ill of dowry in India to corruption. But in trying to disincentivize illegal payments, does our law punish the victim?

Guest Post: The Curious Case of the Anti-torture Bill

I am pleased to publish another guest post from Arghya Sengupta, on the Prevention of Torture Bill 2010 - a topic that has been previously discussed on this blog.
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I.K. Gujral, the former Prime Minister, being the internationalist that he was, thought that signing the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was a good idea. Subsequent Prime Ministers evidently did not share his view, as despite its accession to the Convention in 1997, India remains one of the few countries, and certainly one of the few significant ones, to have not ratified the Convention. Thus when it was mentioned during the course of the Monsoon Session of Parliament that the government was readying an anti-torture legislation as ratification to the Convention requires, most, including myself, assumed that the government had had a change of heart. That is, till the legislation became public. Not only had Messrs Chidambaram and G. K. Pillai not had a change of heart, on the contrary, in the guise of an anti-torture legislation, the Bill sought to be passed legitimised torture to the greatest extent possible politically. The hardline credentials of the Home Ministry thus remained intact and the bill itself was referred to a Rajya Sabha Select Committee for recommendations.

This turn of events raises the following questions: Why was the Anti-Torture Bill sought to be passed at a time when clearly the Home Minister responsible for passing it and implementing its provisions has shown little intention of doing so? What could the Ministry have been thinking when it stated in the Preamble that the Bill was in pursuance of the necessity ‘to ratify the (said) Convention (UN Convention against Torture) and to provide for more effective implementation’ when the Bill itself failed to comply with both the letter and spirit of the Convention? Was it an attempt to hoodwink the Parliament and consequently the population into believing that this was an anti-torture legislation which would weed out the most commonly used instrument of state atrocity?

These are questions, answers to which we may never get. To understand however the curious nature of the legislation and why it is so egregiously violative of international law, a closer scrutiny of its provisions is warranted. The Pre-Legislative Briefing Service Report titled “The Prevention of Torture Bill, 2010: A Briefing Document” which we presented before the Parliamentary Select Committee yesterday, does precisely this. In this Report, we examine clauses 3, 4, 5, and 6 of the Bill on two metrics – their compliance with the Convention and their coherence with existing domestic law and Supreme Court jurisprudence. On both counts we find the Bill has fallen short. We thus suggest appropriate amendments to ensure that the anti-torture legislation is what it purports to be- a legislation prohibiting torture, adopts CAT standards in this regard and irons out inconsistencies with contrary statutory provisions, while at the same time ensuring that the provisions proscribing torture are not liable to rampant misuse. In sum, our effort in this report has been to reshape the legislation in a manner which is theoretically justified, practically efficacious and avoids taking a myopic view of India’s international law commitments, privileging short term symbolic conformity over actual substantive compliance as the present legislation does. Any comments or suggestions on our Report would be greatly appreciated and may be mailed to prelegislativebriefingservice@gmail.com.

Wednesday, October 20, 2010

Neighbourhood Court Watch

I just wanted to draw the attention of our readers to some fascinating constitutional developments in our neighborhood.

1. A month ago the Sri Lankan Parliament ratified the 18th Amendment to their Constitution which ended Presidential term limits, abolished the Constitutional Council giving the President direct say about appointments to the judiciary, the Human Rights Commission, the Public Service Commission, the corruption regulatory bodies and the election commission, and gave the President power to attend and address parliament. As a semi-presidential unitary government elected through a combination of direct and proportional representation, the Sri Lankan constitution is unique to South Asia.

Sri Lanka's moves towards authoritarian government offer an interesting insight into debates over constitutional design. Harvard professor Cindy Skach has been highlighting the popularity of semi presidential forms of government in the third wave of democratization in the 1990s.This constitutional type combines a popularly elected head of state with a head of government who is responsible to a popularly elected legislature.

In her Constitutional Origins of Dictatorship and Democracy, Skach cautions against the hasty adoption of semi-presidential models due to the challenges it poses to democracy, constitutionalism and the protection of fundamental rights.


2. The Pakistani Supreme Court seems to continue to boldly go where no judiciary has gone before. As Ejaz Haider notes in the Indian Express , the Chief Justice hearing a rumor that the embattled Zardari government might attempt to remove him called a full meeting of the Supreme Court. All 17 judges issued a press communique stating that any attempt to do so would lead to the Supreme Court moving suo moto against the government under Article 6 of the Constitution i.e. charging them with high treason. Despite government denials of any such plans, the Court summoned the Attorney General and demanded a written assurance from the government.

In an unprecedented show of political unity, Prime Minister Gilani backed by the Chief Ministers of Sindh, Baluchistan and Khyber Paktunva, a senior Minister from Punjab, and the executive heads of Pakistan Administered Kashmir and Gilgit-Baltistan stated that the government respected the independence of the judiciary but the judiciary too must believe the Prime Minister when he says something. He refused to give a statement in writing arguing that the word of the Prime Minister was enough.

This is the first time that the entire political class of Pakistan has lined up against the Supreme Court (though Shahbaz Sharif, the Muslim League Chief Minister of Punjab send a deputy instead of coming himself). So far, the judiciary has always found some allies in the political class. It would be interesting to see how the Pakistani judiciary executive conflict shapes from now on.

3. On the 5th of October, the Supreme Court of Bangladesh reasserted their authority over the constitution by clarifying their decision earlier this year that had struck down the Fifth Amendment to the Constitution.

Holding that secularism was part of the basic structure of the Constitution the court ruled that "in a secular state, everybody has religious freedom, and therefore no man, woman or child can be forced to wear religious attires like burqa, cap and dhoti". The court had taken suo moto action after coming across a newspaper report about a woman's college issuing a directive prohibition women from coming onto campus without a burqa. The court also held that similiarly, no one can be prohibited from wearing a burqa if they chose too.

4. The Bangladesh Supreme Court's declaration of the Fifth and Seventh Amendments voided also opened up an interesting procedural question. Did the Court's declaration of invalidity automatically amend the constitution or does the parliament have to correct the Constitution through a further process of amendment. The law minister seems to have resolved the debate stating that the government would just reprint the Constitution without the amendments, thus in effect restoring several older provisions.

5. Bhutan's fascinating constitutional trajectory continues. Earlier this month, the government issued a ban on Buddhist and Hindu clergy from voting in the elections to keep religion and state separated. Mahayana Buddhism is officially the state religion of Bhutan and the constitution provides for a dual system of administration with the religious branch headed by a chief abbot and an administrative branch headed by the King. The King is required to be Buddhist and all parliamentary sessions concluded by Buddhist prayers. Clergy were allowed to vote in the first elections in 2007.

Interestingly, in 'secular' India the Buddhist clergy have a separate right of representation. An amendment to the Representation of People's Act in 1949 provided that one seat out of the 32 seats in the Assembly of Sikkim will be reserved for a representative of the Buddhist sangha who will be elected by a statewide constituency of Buddhist monks. To the best of my knowledge, this is one of the few examples of separate electorates in independent India. Buddhist nuns were allowed to vote as a part of this constituency for the first time in 2009

6. Meanwhile in Nepal, there has been an attempt to involve the Supreme Court in the deadlock in the interim parliament/constituent assembly. Over the last few months, the parliament has attempted eight times to elect a leader of the house and failed. The CA regulations requires a winning candidate to get 300 votes from a 599 member assembly, however it also permits MP's to remain neutral and abstain. A group of lawyers have recently petitioned the Supreme Court of Nepal asking that the 'neutrality provision' be declared unconstitutional. The Court is currently hearing the matter.

7. Finally, the Supreme Court of Maldives finds itself in midst of a deepening crisis between the President Nasheed and an opposition dominated parliament. The Constitution provides for a Presidential cabinet which is endorsed by parliament and ministers who can be summoned to appear before parliamentary subcommittees.

President Naheed had shocked the Maldivian system when he defeated President Gayoom in 2008. Gayoom had governed Maldives for thirty years. The parliament (Majlis) continues to be dominated by members of Gayoom's party. The opposition was combative and Naheed's minister's complained that they were following a 'scorched earth' policy to obstruct government. In July this year, the entire 13 member cabinet resigned protesting the behaviour of opposition MPs who they said were “hijacking” the powers of the executive and making it impossible for the cabinet Ministers to discharge their constitutional duties and deliver the government’s election manifesto. In July, Nasheed reappointed the cabinet.

However, the opposition dominated Majlis has been demanding that constitutional procedure requires them to be re-endorsed by them. Nasheed refuses to accept this process arguing that Parliamentary endorsement was intended to be ceremonial and submitting to an American style endorsement process is tantamount to permitting 13 no confidence motions against the government.

The Attorney General has moved the Supreme Court for writ to declare as null and void.

Tuesday, October 19, 2010

Frontline on the Karnataka crisis



* Even as the Karnataka controversy on defections awaits resolution by a third Judge, I explain why the Speaker's decision, on the face of it, appears bad in law.

* Former Counsel to the Liberhan Commission, Anupam Gupta explains in this interview, some of the legal conundrums in the Lucknow Bench's judgment.

*Delhi High Court's judgment legitimises sting operations to expose corruption - not just by journalists, but by any citizen - a point missed by many. Read my article on this here.

*Other contents may be accessed here.

Monday, October 18, 2010

Questioning “Faith” in the Ram Janmabhumi Judgment?

Continuing our coverage on the Ayodhya developments, we feature a guest post by Bhupender Yadav and Vikramjit Banerjee, who are advocates in the Supreme Court.

There is a continuous refrain from the secular intelligentsia everyday, that the Judgment of the Allahabad High Court in the Ram Mandir matter is based on faith, and, since faith has no place in law, therefore the judgment is invalid. The question is that, is it correct that the Court has “wrongly” considered faith as the basis of the judgment in the present case? To answer that question it is important to look at the prayers in the plaints of Suit No. 4 of the Sunni Waqf Board and Suit No.5 filed by the “deities” Sri Ram Lalla Virajman and Asthan Sri Ram Janmabhumi.

The first and basic prayer of the Sunni Waqf Board in it’s suit is:
“ (a) Declaration to the effect that the property indicated by letters ABCD in the sketch map attached to the plaint is a public Mosque commonly known as “Babari Masjid” and that the land adjoining the Mosque shown in the sketch Map by letters EFGH is a public Muslim graveyard as specified in para 2 of the plaint may be decreed
(b) That in case in the opinion of the Court delivery of possession is deemed to be proper remedy, a decree of delivery of possession of the Mosque and graveyard in suit by removal of the idols and other articles which the Hindus may have placed in the Mosque as objects of worship be passed in the plaintiff’s favour, against the defendants."

It is important to note that what was being asked for is not a title to the land , but a declaration that the site was a “Public Mosque”. This would mean an essential decision as to whether the site can be called a “Public Mosque” at all . This means a conclusion will have to be drawn as to whether the said site could be called a Public Mosque in Islamic Law. Now, there are certain facts which have to be adjudicated in Islamic Law for a place to be called a Public Mosque and one of them is whether the Muslims ever treated this place as a public mosque, another, whether Islamic Law allows construction of mosques on places of worship of others and third, what is the status of a supposed Mosque which is presently a place of worship of another religion (all questions of faith ). It is also important to bear in mind that though it is being bandied about today that the dispute was a “title” suit , but what is most important to note is that the Sunni Waqf Board had never ever sought declaration that the “title” of the land be declared in their favour but had asked it to be declared a “Public Mosque” , with all it’s consequent conditions, which could not be decided without going into the “faith” of Muslims . The same “faith” which is a secular dirty word today.

At least in the Suit No. 5 filed by Sri Ram Lalla Virajman and Asthan Sri Ram Janmabhumi title to the land was sought for:

“ (a) A declaration that the entire premises of Sri Ram Janma Bhumi at Ayodhya as described and delineated in Annexures I , II and III belong to the plaintiff deities;
(b) A perpetual injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any obstruction in the construction of the new temple building at Sri Ram Janmabhumi Ayodhya”

The above claim of the “deities” (who have the right to sue through their next friend under Hindu Law) was sought on the ground that Hindus have always treated the site as “sacred” and the birthplace of Lord Rama and held the place as Asthan Sri Ram Janmabhumi , and therefore a deity in itself, on which Sri Ram Lalla presided ( therefore Sri Ram Lalla “Virajman”) as an idol and being another deity. It was also contended that there was an existing temple which was broken to construct a Mosque and such was invalid since in Hindu Law once a deity (being the Asthan Sri Ram Janmabhumi in the present case ) always a deity as the Supreme Court itself has held in Mahant Ram Swarup vs. S.P. Sahi , that even if the idol is broken , or lost or stolen , the moment it is replaced by another idol and duly consecrated it takes the sanctity of the old. In addition after the due consecration of the idol of Ram Lalla ( the other deity) in accordance with Hindu rites, the rights of all parties if any stood extinguished as the right of the original deity stood revived.

It is important to clarify here that “deity” does not mean only an “idol” , which seems to be a broader misconception being held by the so called “secular” brigade. An idol is not a precondition for a “deity” to exist in Hindu theology and jurisprudence, the deity can in the words of the Supreme Court in Ram Janki Deity v. State of Bihar be shapeless, formless like Agni or Vayu , or even a simple piece of wood. The Supreme Court in the same case said that as long as the public feel there is a “divine presence” any place can be considered a temple.

The Court therefore considering the statements made in various plaints and written statements framed the following issues amongst various others on other points , which were to be decided finally by the Court:

(i) Issue No. 14:- Have the Hindus been worshipping the place in dispute as Sri Rama Janma Bhumi or Janam Asthan and have been visiting it as a sacred place of pilgrimage as of right since times immemorial? If so, its effect?

(ii) Issue No. 19(c):- Whether any portion of the property in suit was used as a place of worship by the Hindus immediately prior to the construction of the building in question? If the finding is in the affirmative, whether no Mosque could come into existence in view of the Islamic tenets, at the place in dispute?

Necessarily, in course of the proceedings it had to be proved that Hindus have always treated the site as “sacred” and as the birthplace of Lord Rama. The deities did not have to prove that Lord Rama was born there as the claims of the deities in the plaint was not that Lord Rama was born there and therefore it is sacred, but, that the deities' devotees “believed” that Lord Rama was born there and it is “ Rama Janmasthan” and therefore it is “sacred” to them and has always been treated as a deity.

The Courts have previously held that the way to prove the existence of a deity which is claimed to have been existent from time immemorial is through the fact that the deity was recognized to be one and a representative of the divine form by the people who treated it as part of the divine . The fact of the sanctity of the site was also proved by voluminous contemporaneous documentary evidence of the above mentioned Imperial Gazetteers and travelogues of foreign travelers and who were traveling in the area and who recorded Hindu worship in the site , even , after the Mosque was constructed and the ASI Report which showed that even previous to the supposed Mosque there was an existent Hindu temple. Interestingly this is the point where everyone is attempting to rely on to show that the decision was one based on “faith” and not on law , when such was clearly a question of evidence and for which evidence was lead by both parties to show whether the Hindus did consider the site sacred.

Historians appeared as expert witnesses from both sides to make the point. They were cross examined in detail . Documentary evidences were also produced and questions were put to the witnesses who were produced from both sides as experts on the point. Eminent historians who hold forth on the subject did not put themselves up as witnesses and therefore could not be examined about their views in Court.

Based on the said issues, evidence was lead -- that is documents were disclosed by all plaintiffs and defendants to the suit, and witnesses were produced by all the parties and cross examined by other parties to the proceedings. After the evidence had been disclosed, then arguments were commenced by the parties. This process nearly took nearly 16 years after the directions of the Supreme Court in the Ismael Faruqui Case and subsequent framing of issues by the Allahabad High Court. The great commentators of today were conspicuous by their absence during all this time.

Under the above circumstances it is apparent that the said conclusions directly arise out of the issues framed in the suit and are not a fanciful exploration of “faith” as is being attempted to be made out by the secular chorus. What requires repetition is that the present case being a civil suit and not a “Government Commission of Enquiry” or a “People’s Tribunal” had to be argued only based on the statements stated in the plaints and the written. It is a fundamental proposition of civil procedure that no party can go beyond the assertions in the plaints and written statements filed by the parties in court in the case and all evidence and arguments has to be restricted to proving the facts stated in the plaint and the written statements only. A plaint and a written statement is the basis of any case , and , they are of utmost importance, as facts stated in them cannot be changed later for better or for worse.

There has been strong criticism of the present judgment from various quarters, a lot of which is unfounded and superficial. It is important in our view that for the formulation of any criticism of the present judgment the principles of civil litigation be kept in mind, otherwise we would be in danger of fundamentally misunderstanding the principle foundation on which the present case was decided.

Karnataka High Court's split decision on Tenth Schedule

Today's Karnataka High Court's split decision on the Assembly Speaker's power to disqualify 11 MLAs on the ground of defection can be read here.

Sunday, October 17, 2010

Law, Sensex, and Ayodhya

Here is another interesting take on the Ram Janmabhoomi Babri Masjid decision by Sunil Khilnani. He argues that matters such as Ayodhya, which raise fundamental questions about our national character and identity, cannot be resolved by judicial verdicts, much less by our fast-food faith in the power of markets. Only politics can supply a mature and long-term solution to them.

Developments in Indian Competition Law

In 2009, India repealed its 40 year old Monopolies and Restrictive Trade Practices (MRTP) Act, and brought into force most sections of the 2002 Competition Act. In a recent article in the Economic and Political Weekly (subscription required), Aditya Bhattacharjea, a professor of economics at the Delhi School of Economics discusses both the old and the new laws. After a brief introduction to the basic economic principles underlying modern competition (antitrust) law, he reviews India's experience with the MRTP Act, arguing that the way it was structured, amended, interpreted and enforced ensured that it could not serve as a competition law. Consequently, it did not bequeath a body of expertise that could help in the implementation of its successor, the Competition Act, which is very demanding in terms of economic analysis. He then discusses the strengths and weaknesses of the new law, the reasons for its delayed implementation, and the first few decisions of the Competition Commission of India (CCI).

Although in many respects the new regime marks an improvement relative to the MRTP Act and MRTP Commission, there are also several potentially serious problems. In particular, “contribution to economic development” may be employed in deciding on mergers or abuse of dominance; provisions on anti-competitive agreements may be interpreted to allow a rule of reason even for cartels; and those on abuse of dominance give the CCI authority to take action even in cases where there is no adverse effect on competition. The sections governing merger review remain very controversial, and had not been brought into force as of September 2010. The CCI and the tribunal set up to hear appeals from its decisions have been saddled with a huge backlog of unresolved cases and investigations that were pending with the MRTP Commission. Finally, the long delay (from 2003 to 2009) in bringing the Act into force has resulted in the departure from the CCI of all the staff members who had acquired some familiarity with competition analysis. A slightly revised version of the article is available at SSRN.

Thursday, October 14, 2010

More Musings on Ayodhya

Continuing our coverage of the Ayodhya decision, we are pleased to feature this guest post by Mathew John.

Reading Aditya's affirmation of the Ayodhya judgement I felt I must alsowade in with a few more preliminary comments. Opinions on the judgement are divided - Some like Rajeev Dhavan dismiss it as the summary justiceof a panchayat. Others like Aditya and Pratap Mehta think that it might contain remarkable judicial statesmanship. Only time will tell who isright but given the sheer size of this monster of a judgement this isnot likely to be any time soon. In the meanwhile nervous that much ofwhat I say might be proved wrong by closer reading of the judgement, I want to think aloud about how we should approach and read this judgement.

Reading through the case summaries it does seem that the courts havebrokered a remarkable compromise by converting a suit claimingdeclaratory relief into a partition suit and divided the contested property by metes and bounds. I start by focusing on what Aditya terms'the elevation of easementary rights into that of property'. I think this puts in perspective the kind of shift that the legal process haswrought in spaces like the Babri Masjid-Janmasthan complex.

Irrespective of the supposed depredations of Babur's general, it notdisputed that the space was being resorted to by different parties.However the trial court deciding the dispute in 1885 seemed to think that granting the Mahant Raghubar Das any right to build a temple on the structure "would amount to laying down foundation for riot between the two communities." (p. 19 Khan J.). However this seems to fly in the faceo f the facts because the various communities did occupy the space together without breaking out into riots. It is true that there wered isputes, its is true that these disputes also resulted in violence anddeath but by granting the Muslim Mutavali exclusive property rights overthe property the court's resolution of the dispute in 1885 seems to havebeen premised on the /absolute separation /of the communities rather than to face up to an immediate problem of conflict. I wonder if thepresent decision reaffirms the same kinds of resolution albeit in changed circumstances?

Perhaps the present resolution was the best that the judges could have brokered. Perhaps the situation is so vitiated that the communities cannot occupy the space unless their rights are clearly marked, separated and partitioned. However this then has to be done by preserving the integrity of the law. A friend of mine had asked if would it be possible to have arrived at the present resolution if the mosque was not pulled down? I suspect not, though the other parties wouldperhaps have been able to assert their right of use over the property. Therefore, I'm wondering if it is possible to think of a resolution of thedispute by granting the superior title of the Mutavali, which he presumably did have until 1949, while yet protecting the broader rights of use of the other claimaints? In this way the integrity of law(adverse possession in favour of the caretaker of the mosque) is protected while at the same time protecting the easmentary and other user rights that parties have in the property.

On another note there are many obvious problems with the introduction of the gods into history. I raise one aspect of this problem which arises from Justice Sharma's finding that the disputed site is the birthplace of Lord Ram. I am not at all clear why the question of birthplace wasrelevant to the case but it is important to note in this connection thatit is not 'Lord Ram' (who can manifest in many forms) but a particular diety 'Bhagwan Sri Ram Lala Virajman' who was a party to this dispute. Ido not know much about the nuances of the juristic personality of idolsbut it is an interesting oddity of Anglo-Hindu jurisprudence (debutter property law if I am not mistaken) that dieties are considered perpetual minors and represented in courts by their guardians, shebaits, nextsfriends and so on. However in all these cases it is not the divineentity 'Lord Ram' in whose name property is endowed but a particular idol represented by his next friend. I wonder if this distinction is reflected in the judgement even though the summary seems to suggest otherwise?

Lastly, it is popularly considered unusual and objectionable to have judges dabbling in theological matters but in the recent past scholars (like for instance Pratap Mehta "On the Possibility of Religious Pluralism,") have increasingly begun to point out that even in contemporary secular states the law and the courts make extensive claims on religion, even to the point of deciding what is and is not religion. In this context the task of scholars is to fathom the structure of thedemands that politics makes on religion and not only to raise normative objections to such demands. Perhaps this judgement will tell us more about the manner in which our law and politics makes claims on our religious traditions.

Tuesday, October 12, 2010

Summary of the Babri Masjid -Ram Janm Bhoomi Decision

My summary of all the opinions in the Babri Masjid decision can be found here. The judgment poses a fascinating array of questions. There has already been strident criticism as well as cautious praise for the decision, much of which has been noted on this blog in the past few days. This note attempts to give a broad overview of the facts of the case as presented to the Court, the issues raised by the parties and the Court's decision thereon. At this stage, the note does not contain any analysis or critique; merely a summary of the voluminous decision.
Please note: I prepared this summary as part of my Research Assistantship with Prof. Ratna Kapur, who is a Visiting Professor at Yale Law School this Fall. I have her permission to post the note online.

Monday, October 11, 2010

Comparative Constitutional Law and Naz Foundation

This blog has covered Naz Foundation's use of comparative legal materials previously. In an article titled "Inclusive Constitutional Comparison: Reflections on India's Sodomy Decision", forthcoming in the American Journal of Comparative Law, I reflect upon the role that foreign and international law played in Naz Foundation. The article is now available for download here, though the final version will have minor revisions. The abstract is as follows:

Recent years have witnessed an outpouring of literature evaluating whether judges should refer to foreign law in resolving domestic legal disputes. A range of theories now posit constitutional comparison, outlining its benefits and highlighting its promise. Yet the support for such a practice is deeply qualified; comparative scholars narrowly limit the nations that should be considered while performing comparative study. This essay in comparative law theory reflects upon India’s recent sodomy decision, Naz Foundation v. Government of NCT of Delhi, to evaluate which countries should be part of the comparative law project. In Naz, the Delhi High Court decriminalized homosexuality while referring extensively to a range of unlikely foreign sources, such as decisions from Nepal and Fiji. Assessing the role that such references may have played, we find that Naz calls on us to revisit the boundary question in comparative constitutional law by revealing the network effect of judicial decisions. Drawing on the distinction between content-independent and content-dependent reasons, this essay illustrates the nature of force that foreign law may exert and demonstrates why an inclusive approach towards constitutional comparison may not only be beneficial but perhaps necessary. Such an approach holds the greatest promise of responding to concerns like cherry-picking, and gives our work an opportunity to be not merely comparative but truly global.

Call for Papers: The Indian Journal of Constitutional Law

The Indian Journal of Constitutional Law is an endeavour of the Constitutional Law Society at NALSAR, Hyderabad and the MK Nambyar SAARC Law Chair in Comparative Constitutional Studies. The Journal serves as a forum for the promotion of scholarship on core and comparative constitutional law issues. Published annually, the Journal comprises separate sections for articles, essays, case comments, legislative comments and book reviews. It is aimed to provide a source of qualitative and well-researched jurisprudence to constitutional lawyers, academicians and students, while simultaneously encouraging contributions from all these quarters.

The Indian Journal of Constitutional Law is pleased to invite contributions for its 5th Issue slated to be released in July 2011. We will be accepting original unpublished work in the fields of Constitutional and Comparative Constitutional Law and Theory.

The submissions may be made in accordance with the Submission Guidelines and Editorial Policy which are accessible on our website at www.ijcl.in .

The last date for submissions is the 31st January, 2011.

Any queries regarding the same may be e-mailed to cls@ijcl.in.

Saturday, October 09, 2010

Kafila posts on Sri Lankan constitutionalism and Ayodhya

Rohini Hensman has written a thoughtful and detailed post for Kafila which explains both the background context and implications of the recent passing of the 18th amendment to the Constitution of Sri Lanka. Unusually for a blog post, she manages to provide a succinct overview of constitutional developments in the island nation over the past three decades, which helps those of us who are not fully aware of the relevant history to get a sense of the overall context of her argument. A more recent post on Kafila offers Biswajit Roy's preliminary take on the judgments in the Ayodhya case, focusing on Justice Khan's judgment in particular.


Update (Oct 18, 2010): Biswajit Roy's further thoughts on the Ayodhya case, focusing on the judgment of Justice Agarwal in particular, are available here. Somewhat coincidentally, given how the original post was framed, Rohini Hensman has subsequently written a blog post for Kafila on the Ayodhya case which is available here.

Friday, October 08, 2010

From the Cradle to...62

In this edit piece in the Times of India (September 29, 2010) I argued that the Constitution (One Hundred and Fourteenth Amendment) Bill, 2010 (available here) deserves praise and criticism. It deserves praise because it seeks to do away with unnecessary hierarchy – the 3 year difference in the age of retirement between High Court and Supreme Court judges (SC judges retire at 65, HC judges at 62). However, it deserves criticism because, given the present policy of appointing predominantly senior judges, the 3 year age gap guarantees that Supreme Court judges will serve at least 3 years in office, since the "oldest" new Supreme Court nominee would be 61 years, 11 months and 29 days old: with 3 years and a day until retirement. If the age of retirement for High Court judges is extended to 65, then will the "oldest" Supreme Court nominee be 64 years, 11 months and 13 days old? (a risk, considering that we've had a Chief Justice with a 17 day term)

I wanted to clarify here that Supreme Court judges can also be appointed from amongst retired High Court judges (much in the same way as "distinguished jurists" can be appointed to the court). So a 64 year old retired High Court judge can also be appointed to the SC. However, in the last 25 years, this has hardly ever been done (I believe that since August 1985, Justices Saikia and Fathima Beevi were the only such examples, although Justices Ojha, Paripoornan and Balasubramanyan came ominously close to retirement). Justice Beevi also had one of the shortest natural SC tenures in office in the last 25 years.

So the question that I wanted to ask is: how does one ensure parity of treatment between constitutional court judges, and at the same time ensure adequate terms or tenures in office?

Viva Voce, Constitutionality and CLAM

Recently, the Indian Patent Office (IPO) announced the schedule for the next patent agent exam to be held on January 15 and 16, 2011.

This exam is the key filter towards the practice of "patent" drafting and prosecution in India. In other words, unless one meets the eligibility criteria (that of being a science graduate) and passing an exam, one cannot draft and prosecute patents on behalf of clients. Not even if one is stamped with legitimacy as as an "advocate" under the Bar Council rolls (lawyers are merely entitled to represent clients in patent litigation, advisory work and in hearings before the Controller of Patents).

For those interested, the results of the last patent agent exam were analysed here.

Given that one part of the exam (the viva voce) appears to suffer from a constitutional infirmity, I thought this merits a discussion on LAOT, the home to many constitutional experts.

By way of background, the eligibility criteria for taking the patent agent exam is that the person must have completed 21 years of age and must have a science, engineering or technology degree from India. Importantly, the person must also have passed a qualifying exam.

This exam tests a candidate on his/her knowledge of the patents act (Paper I) and his/her proficiency with drafting and interpreting patent specifications and other related documents (Paper II). The total marks for the exam are 300. Each of the written papers (Papers I and II) is for 100 marks. Subsequent to the written exams, a viva voce of 100 marks is also conducted.

In order to qualify, a candidate must get 50% in each individual component of the exam (Paper I, II and the viva) and shall be declared to have passed the exam only if he/she obtains an aggregate of 60% of the total marks.


Some of us are of the view that the requirement of a viva voce is unconstitutional, inherently subjective and entails significant administrative and other costs. Hence it should be done away with.

Alternatively, assuming that the viva is held legally valid in principle, the present structure of the viva is arbitrary and unconstitutional. And should therefore be changed.

In order to engender more discussion on this theme, we have thrown open this debate on two platforms. One is the CLAM platform, that had already been introduced on this blog earlier. We'd run two policy proposals on CLAM, one dealing with the copyright exception for the "disabled" and the other dealing with other copyright proposals (that were drafted in the light of the recent copyright amendment bill by the government).

All you need to do is register through a very simple process--and you can participate in CLAM by posting your comments.

Alternatively, for those of you "argumentative" folks interested in more of a "debate" style platform, we've put up the above proposals on debatepedia. Here again, all you need to do is to simply register (provide a user-name and password) and you are ready to go.

If you don't have the time and inclination to register at these sites, you can still view the proposals by simply visiting the relevant pages on CLAM and Debatepedia.

We would be very grateful if as many of you (as possible) could participate in this initiative. For one, it helps us refine the proposal and strengthen the arguments (or perhaps appreciate that the arguments are weak and we are barking up the wrong tree).

We are also hoping to improve the CLAM platform through this process. CLAM is meant to engender a more "collective' and participatory process in law making. The time is ripe for such a platform, as would enable one to present policy proposals and refine/strengthen it (or even discard it) after inputs from stakeholders and members of the public. The platform will initially start with some key IP policy proposals and then move on to cover other legal/policy areas.

The platform is not only meant for proposals on intellectual property. Rather, anyone with a carefully thought out policy proposal on any area of law can use the platform by presenting the proposal therein and seeking public input and views. Once such views are received and the issues thoroughly debated on the platform, the mover of the proposal/motion could amend their proposal in the light of such views and forward the final proposal to the government for consideration and implementation.

Unfortunately, the current CLAM platform is far from optimal. If some of you who have strong views on the legality of viva voce's (or even those of you who are interested in participatory policy making more generally), can use these platforms and come back with your suggestions on how to better it, it would help us devise a far more optimal platform than the present one.

In fact, we are also thinking of opening this to competition and offering a prize (20-25,000 Rs) for the person who designs the most optimal CLAM platform for us. Such a platform should enable the following:

i) Any person should be able to formulate a policy proposal on any area of law and throw it open to public debate and participation.

ii ) Members of the public (or any other closed group) can edit the said proposal and/or offer comments on it.

iii) Members of the public (or a defined close group) can view the proposal and all the comments pertaining to it, as also the history of the edits and comments.

iv) Members of the public (or a closed group) have the ability to add more arguments to the proposal and debate them out (much like debatopedia).

v) A general flee flowing discussion board, where folks can comment more generally on the proposal and surrounding issues, without necessarily pegging it to actual wordings of the proposal.

vi) The building up of communities and networks of interested people around specific areas of law/policy

vii) The ability to collect signatures for the final public petition that comes out of this participatory process and is sent to the government for consideration and implementation.

If any of you are interested in this platform and structuring it or collaborating on this venture, please let me know (shamnad [at] gmail.com).

Wednesday, October 06, 2010

Jurisdiction of the SC and Section 11(6) of the Arbitration and Conciliating Act, 1996

I am pleased to present a guest post by Mr. Anirban Bhattacharya, a Senior Associate with Luthra & Luthra Law Offices, New Delhi. The present article contains views of the author and not necessarily the views of the firm that engages him.
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The jurisdiction of the Supreme Court can broadly be categorized as under:

1) Appellate Jurisdiction
2) Original Jurisdiction
3) Advisory Jurisdiction

The original jurisdiction as conferred by the Constitution of India are under articles 32, 71, 131, 139 A(1) ,139(A)(2); read with section 25 of the Code of Civil Procedure, 1908 and Section 406 of the Code of Criminal Procedure, 1973. Lastly, Article 71 of the Constitution of India, 1950, which provides that all doubts and disputes relating to election of a President or Vice- President are required to be enquired into and decided by the Supreme Court.

The third amended volume of the handbook of practice and procedure of the Supreme Court release on March 25, 2010 by Hon’ble Mr. Justice K G Balakrishnan (as he then was) also reflects the same understanding.

However, requests (Arbitration Petitions) are regularly filed and disposed of by the Supreme Court in its “Civil Original Jurisdiction”. A case in point may be a recent such decision by the CJI designate in Denel (Proprietary Limited Vs. Bharat Electronics Ltd. and Anr. (JT 2010(5)SC 344). The relevant extract is herein as under:

“The Petitioner has filed the present Arbitration Petition under Sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act"). It is prayed in the petition to appoint a sole arbitrator to adjudicate the dispute between the parties.

In the light of the aforesaid factual background, the petitioner has invoked the jurisdiction of this Court by filing the petition under Section 11(6) of the Arbitration and Conciliation Act 1996, to appoint an arbitrator to resolve the dispute between the parties.

Sub-section (6) of Section 11 of the Act provides, that, when the parties fail to reach to an agreement as regards the appointment of the arbitrator, can request the Chief Justice or any person or institution designated by him to come to the rescue of the parties. Therefore, petitioner in the present case has sought the appointment of the arbitrator by this Court so that the dispute between the parties can be resolved.”


It appears that the Hon’ble Judge did not notice the mandate of the Constitutional Bench decision of the Supreme Court in S.B.P. and Co. Vs. Patel Engineering, (2005) 8 SCC 618 which in most categorical and unequivocal terms clarified the legal position of section 11 overruling on of the court’s previous decisions as under:

“It is true that the power under Section 11(6) of the Act is not conferred on the Supreme Court or on the High Court, but it is conferred on the Chief Justice of India or the Chief Justice of the High Court. One possible reason for specifying the authority as the Chief Justice, could be that if it were merely the conferment of the power on the High Court, or the Supreme Court, the matter would be governed by the normal procedure of that Court, including the right of appeal and the Parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by Courts in the arbitral process. Therefore, the power was conferred on the highest judicial authority in the country and in the State in their capacities as Chief Justices. They have been conferred the power or the right to pass an order contemplated by Section 11 of the Act.”

Thus, from a conjoint reading of the aforesaid decisions, it is clear that the petitioners could not have invoked the jurisdiction of the court nor could they have sought for appointment of an arbitrator by the court as stated by the Hon’ble justice.

Curiously, a bare reading of this decision and others decisions under section 11 of the Arbitration and Conciliation Act, 1996 would reveal that the orders are presumably being passed in the “civil original jurisdiction” of the Supreme Court of India, even after a categorical clarification with regard to the ambit , jurisdiction and scope of section 11 of the Arbitration and Conciliation Act, 1996 in Patel Engineering (supra) that the jurisdiction to appoint an arbitrator under section 11(6) of the Arbitration and Conciliation Act, 1996 has been conferred upon the CJI and his designate and not upon the Supreme Court.

This fact is further buttressed by fact that the Supreme Court Rules do not provide for such requests under section 11 of the 1996 Act to be decided by the Judges sitting either in Division Bench or singly under any of the applications listed under Order VII.

Furthermore, one fails to notice that such applications to the CJI or his designate are preferred under “the Appointment of Arbitrators by the Chief Justice of India Scheme, 1996” which had been formulated by the Chief Justice of India under sub-section (10) of Section 11 of the Arbitration and Conciliation Ordinance,1996.

Thus, to conclude, civil original jurisdiction of the Supreme Court is neither invoked for requests under section 11 of the Arbitration and Conciliation Act, 1996 nor do the CJI or his designate pass such orders under the said jurisdiction but they do so under powers conferred on them and not the court as explained in Patel Engineering (supra).

Another aspect which deserves attention is the incorrect and misleading statement posted on the website of the Supreme Court, which interalia various captions/links, has the following written under ‘JURISDICTION OF THE SUPREME COURT’ wherein it is stated that “Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.

Section 11 of the Arbitration and Conciliation Act, 1996 very clearly does not provide for initiation of International Commercial Arbitration but provides for a measure for appointment of an arbitrator by the CJI or his designate once the parties have failed to agree.

Following Patel Engineering, yet another aspect becomes clear that since the requests under Section 11 of the Arbitration and Conciliation Act, 1996 are decided by the CJI or his designate, the points of law decided by the CJI or his designate under section 11 do not have any precedential value (not binding on other courts) under Article 141 of the Constitution of India and the concurrent Benches and High Courts are not bound by the reasoning in such decisions in any manner.

However, since the said decisions are judicial in nature (as distinct from discretionary administrative powers), one must not forget that such decisions continue to bind the arbitrator on a decided issue, the parties to the arbitration and the doctrine of estoppel would operate qua the parties.