Monday, February 28, 2011
This article verifies the decline in constitution benches in real numbers for the first time in any place that I know of. Further, it looks at how these benches have changed over the years: with opinions becoming longer, more split, and more difficult to determine the victor. Some findings are a bit mysterious - like why appellants/petitioners are doing substantially better in the last couple decades in these cases. Other results seem at first counter-intuitive, but make sense upon further reflection, such as the most foreign citation happening by the Court in the first decade of independence (far before our "globalized" era, but in the fledgling first years where there was little Indian precedent to rely on except colonial era cases). Finally, still other findings were already known, but this study gives more detail and weight - such as Chief Justices disproportionately not being in dissent (we only found a CJI in dissent 10 times since independence), which perhaps indicates they are choosing these benches to their liking (for more on this see this article I wrote in July in India in Transition).
Such quantitative studies as this one have clear drawbacks. One can't get a sense of the importance of individual cases without reading them through and placing them in their context. One can't tell the history of the court in numbers - without narrative, without invoking the values that run through it. And yet, I think such studies are still useful. They give us hard numbers (or relatively hard ones) upon which we can make grounded statements about certain developments we have seen on the court. We can better understand it as an institution. We can say constitution benches are becoming less frequent, we can say opinions are getting longer. This might not be much, but we can say it on solid ground. And that is more than what one can hope for in most discussions about the law. Why the court is hearing fewer constitution benches or writing longer opinions. Or whether it should. Those are questions numbers can't answer, but which they can inspire debate about, and hopefully will.
Sunday, February 27, 2011
Siddharth Narain in EPW traces the history of sedition laws and asks pertinent questions about the role that it plays in the Indian republic.
Jeff Redding in "Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems" examines a Supreme Court petition that challenges the constitutionality of the mushrooming Shariat courts and Dar-ul-Qaza courts in India to highlight what he describes as the institutional turn in Indian legal pluralism.
Both articles ask key questions about the role states should play in regulating lives of its citizens.
Thursday, February 24, 2011
The Indian Government's resolve to annul the Antrix-Devas 2005 agreement must mark as the most mysterious Executive decision taken in recent years.(Use this link to access the contents of the recent issue) In this article, I examine the issues involved, and the likely consequences.
In another piece, I reflect on the Supreme Court's recent decision in Arup Bhuyan case, and compare it with the Chhattisgarh High Court's judgment rejecting Binayak Sen's bail plea.
Articles by A.G.Noorani (Lobbyists and the law) and by Justice Krishna Iyer (Time for change) are worth reading.
Wednesday, February 23, 2011
Tuesday, February 22, 2011
Monday, February 21, 2011
Thursday, February 17, 2011
"Legislative reforms in Hindu and Christian law and the increasing juridification of Muslim law have created a greater degree of uniformity between the different personal laws. Secondly, there has been greater democratization inside communities and a concerted attempt to reform family law from within. Third, new social surveys have demonstrated that the differences in gender dynamics and family structures bear a greater correlation to economic class and geography than to religious identity. Finally, the focus in family law reform has expanded to address questions of domestic violence and the right to a matrimonial home which cut across community identities"
Because of the limits of the format I was not able to supply all the references that I would have liked, but for those who are interested I would recommend
-on the juridification of Muslim family law
Flavia Agnes, Law, Justice and Gender: Family Law and Constitutional Provisions in India (Oxford, New Delhi, 2010)
- on fragmentation within Muslim organizations
Justin Jones, ‘Signs of churning’: Muslim Personal Law and public contestation in twenty-first century India"
Sylvia Vatuk, “Islamic Feminism in India? Indian Muslim Women Activists and the Reform of Muslim Person Law.” In F. Osella and C. Osella, eds., Islamic Reform in India, Special Issue, Modern Asian Studies 42/2 & 3, 2008.
-on survey data on the conditions of Indian women
Zoya Hasan and Ritu Menon, Unequal Citizens: A Study of Muslim Women in India (Oxford University Press, 2004)
Wednesday, February 16, 2011
On Feb 10, 2011, a division bench of the Gujarat High Court dismissed, with "exemplary costs" of Rs 20,000, a PIL filed by a Dalit activist challenging the performance of Hindu religious functions during a 'foundation laying/bhumi pujan ceremony' on the grounds of the High Court. The full text of the judgment in the case of Rajesh Solanki v. Union of India is available here (hat tip: Law-in-Perspective), and makes for very interesting reading. The judgment is strangely silent on the material facts that led to the petition: for those facts, one has to turn to media reports (such as those available here and here).
As set out in the judgment, the main ground of challenge was as follows:
“ 5. Much emphasis was given by the learned counsel for the petitioner on the aspects of the secular character of our Constitution and the word “Secular” incorporated in the preamble of the Constitution read with the relevant Articles of the Constitution provided for right to freedom of religion were pressed in service. It was submitted that as per the constitutional debates which had taken place before our Constitution came into force, there were various discussions on the said aspect, some of which are referred to in the petition and some were submitted at the time of hearing to contend that the State cannot have any religion. Any action on the part of the State to identify itself with any particular religion could be said to be non-secular activity on the part of the State. It was contended that offering prayers with the help of Pandits who spoke Sanskrit slokas at the Bhoomi Pujan could be termed as identification by the Constitutional dignitaries or the High Court with Hindu religion and such activity would hurt the religions feeling of the citizens who professes other religion and therefore, such action can be said as non-secular and deserves to be declared as unconstitutional. It was submitted that the petitioner has no enmity with any Constitutional dignitaries who offered prayers at the ceremony including the other Honourable Judges who attended and participated at the function, but such function can be said as resulting into creating adverse feeling amongst the other persons who do not believe in Hindu religion. It was also submitted that the High Court being the highest judiciary in the State should guard the constitutional rights given to all citizens and should maintain the secular character of the State. The performance of such ceremony as per Hindu religion would shake the confidence of the people who do not believe in Hindu religion and therefore, the action deserves to be declared as unconstitutional as prayed in the petition. It was also submitted that secularism being one of the basic character of the Constitution, even Parliament cannot amend the Constitution so as to alter the basic structure of the Constitution. Therefore, such would equally apply to the High Court which is the highest judiciary in the State and the constitutional body to guard the rights of the citizen in the State."
The response of the division bench, comprising Justices Jayant Patel and J.C. Upadhyaya, to this line of argument was as follows:
"19. The apprehension voiced of the alleged hurt of any religions feeling or that the impartiality of the highest judiciary of the State would be at stake on account of the foundation laying ceremony performed by offering prayers and the sanskrit slokas spoken at that ceremony, can be termed as a pervert view or ingenuine doubts self created in the mind of the petitioner or the persons whose cause is sought to be exposed by the petitioner in the present petition to a noble intention of praying the earth for the successful construction of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc. Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity. Further, as observed earlier, such action of offering prayer to the earth at the time of foundation laying ceremony cannot be termed as an activity by the High Court which may result into flourishing any particular religion as sought to be canvassed. The real object and purpose is for successful construction of the building and not for flourishment of any religion. If for any noble cause, prayers are offered by any person, such would not result into an action for flourishment of any particular religion, but could be termed as for betterment of all persons who are directly or indirectly to be benefited by the successful construction of the building. If one has to offer prayer for successful construction of the building, naturally, he or she would offer prayer as per his own understanding of prayer. The language used for offering prayer or mode adopted for offering prayer with the help of a group speaking a particular language cannot be termed as siding with a person or a group of person adopting a particular mode for offering prayers. As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.”
The ToI report on the case carries the headline: “Secularism is not anti-God”. Students of the Indian judiciary’s body of precedents on religion and the law know that this sentiment is certainly in line with that body of law. However, the question is not whether one has to be “anti-God” to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally. The High Court’s judgment spectacularly ducks this more important and salient question. It would have been quite a different scenario if the Gujarat High Court had invited religious figures from the major Indian religions to the foundation ceremony to offer common prayers. (This is not to say that that scenario is not without problems, but to emphasise that only one religion was represented).
There is also a disturbing whiff of vindictiveness in the costs awarded to the PIL petitioner, who was, in any view of the matter, raising a basic and significant question. One hopes that he will persist with the case, and take it on appeal to the Supreme Court, which in turn should take the opportunity to clarify the state of the law on this important question which arises in Indian public life with frequency and consistency.
Tuesday, February 15, 2011
Five independent members of the Karnataka Legislative Assembly who had declared their support to the BJP government, and were inducted into the Council of Ministers, were disqualified by the Speaker of the Assembly under Paragraph 2(2) of the Tenth Schedule to the constitution, factually following their representation to the Governor that they withdrew their support to the government.
Paragraph 2(2) of the Tenth Schedule disqualifies an independent member of a house/assembly who joins any political party after election on the ground of defection: “2(2) : An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.”
On page 76, the court states the object of Paragraph 2(2): “While electing a person as an independent member of Legislature, the majority of the voters of the constituency would reject the candidates from the political parties contesting from such constituency. As such, it is expected and it is incumbent on the elected independent member to retain his independent character without joining any political party and without imbibing or following the policies or ideas of any political party. The electorate while choosing to vote for the independent would be aware that if elected, their representative would not be a part of the Government which in any event will be formed by one or the other political party.” (emphasis supplied)
The question was whether the five petitioners in this case had “joined” the BJP. The court held that they had, for the following reasons:
(1) Becoming Ministers:
Citing Jagjit Singh’s case [(2006) 11 SCC 1], it was held that giving “outside support” to a government does not constitute "joining" a political party. However, joining the ministry in a government formed by the single largest political party does not constitute mere “outside support”:
“The general perception of understanding the act of outside support means, supporting the Government from outside without being a part of the Government but adding to the number to have majority in the Assembly, meaning thereby if an elected representative joins the Ministry, he is not giving the outside support to the Government, but is a part of the Government.” (emphasis supplied)
The court held that while electing an independent candidate, the electorate would be aware that their representative would not be a part of the government. Accordingly, by becoming a minister and thereby a part of the government, the representative becomes liable to disqualification. To address the concern that this holding may have far reaching implications for coalition governments, the court chose to distinguish between a coalition government and a government formed by the “single largest party”:
“In this regard, the contention of Sri Ravivarma Kumar, appearing on behalf of the petitioners, also needs to be considered. He contended that in case the view of the Speaker that the conduct of joining the Ministry amounts to joining the political party is accepted, then, there would be far reaching consequences on the concept of coalition Government. Such apprehension cannot be accepted since in the instant case, it cannot be considered as a coalition Government. The coalition Government is different from the Government formed by a single political party. Coalition Government is the Government by a coalition of political parties formed when political parties unite to secure majority in the House over the other groups. In the coalition Government, all the political parties which form a coalition will retain their independent political character as a heterogeneous combination and they will stick to their own ideologies. One political party of a coalition Government will not impose its ideology on other parties. However, there would be common understanding or common minimum programme to run the Government. No member of such political party which is a part of the coalition will be able to take independent decisions to either join or withdraw from the Ministry, but would be the collective decision without surrendering itself to the other political party which also results in the stability of such Government. Coalition Governments are formed in order to avoid repeated elections or elections at irregular intervals and basically they are formed in the interest of the State and not for individual benefit. But here is a case where the Government is formed by a single largest political party to which the independent members have supported unconditionally and have joined the Ministry.” [paragraph 48] (emphasis supplied)
Does this holding discredit the resolve of independent members generally, by assuming that they will not “retain their independent…character” or “stick to their own ideologies” when they become ministers? Further, does this paragraph seem to imply that in a coalition government, an independent member who joins the ministry may not be liable to disqualification on the ground of defection?
(2) Attending Party Meetings Otherwise than as Independent Members:
The petitioners in some instances signed the register of party meetings without distinguishing themselves as distinct from other party members: “Since the petitioners have attended and signed the Register relating to BJP Legislature party meetings, it can be inferred that they have treated themselves as members of the House belonging to BJP as a continuing act after joining the Ministry.” [page 171]
(3) Receiving the Whip sent by the Chief Whip of a Party:
“If really the petitioners were not the members of the Legislature party of BJP, they would not have received the `whip’ sent by the Chief Whip of that party. There is no reason as to why the petitioners should receive such a direction issued by the Chief Whip of BJP if they had retained their independent character and identity, more particularly, when they were described as the members of ruling party.” [p. 174]
(4) Participating in Rallies:
The petitioners also participated in rallies conducted by the BJP under its banner and symbol. [p. 174]
The fact that their names were not changed in the register maintained by the Speaker under Rules 3 and 4 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 was held to be irrelevant, since the petitioners had not expressly joined the party by paying membership fees and filling up the form [p. 155]
Interestingly, it was also held that voters can file complaints against defection despite Rule 6(2) of the Rules, since: “The voters of [a] constituency should not be placed in a helpless situation if none of the members of the House complains about the illegal defection. Therefore, every voter of the constituency should have an opportunity to oppose the illegal defection by bringing it to the notice of the Speaker. Since Tenth Schedule of the Constitution does not debar filing of the complaint seeking disqualification of a defected member, every voter in the concerned constituency has got right to file application seeking disqualification since a Rule should not be permitted to bar the remedy which is not barred by the Constitution.” (emphasis supplied) [page 97]. This holding adds to the court’s jurisprudence on the formulation of a general right to a remedy: courts seem to be increasingly unwilling to create situations in which citizens do not have access to official redress.
Saturday, February 12, 2011
Unelected courts in constitutional democracies are described as “countermajoritarian” fundamentally because they carry the power to invalidate law enacted by the directly elected representatives of the people. However, in a purely formal sense, is the Indian Supreme Court countermajoritarian? In order to answer this question, I compared the Supreme Court’s composition between 1985-2010(published in the EPW, and available here) with the composition of Parliament: particularly, with the seats that are allocated under India’s constitution to the Lok Sabha (Article 81 read with the first schedule to the Representation of People Act, 1950) and the Rajya Sabha (Article 81 read with Schedule 4 of the constitution).
The results of this comparison are set out in the table attached to this post. Columns 1, 3, and 5 set out the total members of the Rajya Sabha, Lok Sabha and, for the sake of convenience, both houses of Parliament, respectively for each state. Columns 2, 4, 6 and 7 reflect the percentage-wise voting power belonging to each state in the Rajya Sabha, Lok Sabha, both Houses of Parliament, and the Supreme Court of India respectively. Column 8 measures the difference in the voting power of each state between Parliament and the Supreme Court of India respectively (essentially, Column 7 - Column 6). Accordingly, if the figure in Column 8 is positive, it means that a state has a higher representation on the Supreme Court than it does in both Houses of Parliament, and if the figure is negative, then the state has a lower representation on the Supreme Court than it does in Parliament.
Perhaps the most striking result of this comparison is that while Delhi has less than 1.3% voting power in each House of Parliament, it has on average over the last twenty five years had 6.4% voting power on the Supreme Court of India. To put this into perspective, consider that the following states have on average had lesser representation than Delhi on the Supreme Court of India over the last twenty five years, although they enjoy significantly greater voting power than Delhi in both Houses of Parliament: Gujarat, Punjab & Haryana (each state taken separately), Kerala, Madhya Pradesh, Orissa, Rajasthan, and Jammu & Kashmir.
Besides Delhi, the following states have a >0.5% difference between their voting power in Parliament, and their voting power on the Supreme Court (not counting the newer states of Jharkhand, Uttaranchal and Chhatisgarh): Gujarat (+), Haryana (+), Kerala (+), Maharashtra (+), Karnataka (+), Orissa (+), Punjab (+), Uttar Pradesh ( - ), Jammu & Kashmir (+), Himachal Pradesh( - ).
This comparison does not seek to establish or even argue that judges or Parliamentarians vote according to the geographic region that they represent. What it does seek to do is to determine whether the court's state-wise composition mirrors the constitutional scheme for majoritarian representation.
[Methodological Note: since the states of Punjab and Haryana have had 6.6% representation on the court on average, and since it is difficult to conjecture how this figure splits between Punjab and Haryana separately, each state has been attributed half the total figure of 6.6% for the purposes of this comparison].
As Egypt begins its post-Mubarak era, the successful revolution is sure to leave many bewildered. Till recently, political scientists hardly considered Egypt a possible candidate for a successful revolution, with many characteristics of historical revolutions being absent there. Even as Indian observers debate the question of why and how Egyptian revolution cannot be replicated in India, the unique characteristics of Egyptian revolution will be of interest to the readers here. Frontline's latest issue, published before the revolution became successful, explores the protest movement in Cairo and what it signified.
My contributions to this issue include an article on the Supreme Court's recent judgment and its partial modification in the Graham Staines murder case in the wake of civil society's outrage against some remarks of the Judges. I argue that the modification of the judgment, still leaves one dissatisfied.
The second one is a review article, dealing with Durga Das Basu's Commentary, and Shorter Constitution's latest editions. The article also discusses two more books of interest, trying to find the answer to the question why and how the Indian Constitution is resilient.
1. All requests for prosecution must be dealt with within 3 months - if no decision is taken, sanction will be deemed to have been granted.
2. Any refusal to grant sanction must be accompanied with reasons.
3. Refusal can be appealed by an aggrieved party (currently, it can only be reviewed, not appealed).
Now, the Group of Ministers appears to have made similar recommendations with regard to prior sanction requirements in corruption cases. But can we count on our political class to give up such a powerful tool of patronage and punishment?
Friday, February 11, 2011
Thursday, February 10, 2011
Wednesday, February 09, 2011
Mehta's insight that 'liberal politics globally has been curiously susceptible to being taken over by right-wing nationalists' is noteworthy. Notice that he talks about liberal, rather than neo-liberal, politics. I find the right-wing's takeover of the liberal agenda curious too. Unlike neo-liberalism, recent liberal thought not only recognises but also mandates redistributive justice (and not necessarily based on identity). Liberal philosophers from John Rawls to Joseph Raz to Martha Nussbaum are more likely to be classified as belonging to the 'left' than to the 'right'.
On a related note, much is being made of 'efficiency' in the public sector in British politics these days. Again, like liberalism, I fail to see why efficiency should find a natural home in right wing politics. Surely, the left can make a positive case for a redistributive (big?) state which is also efficient as easily as the right makes a case for a small and efficient state? Appropriating liberty and efficiency as values of (at least parts of) the political left may also help expose those politicians who use them as pretexts for another agenda.
Sunday, February 06, 2011
As some of you may recall, the Supreme Court took indiscriminate tribunalisation to task when it upheld the challenge to the constitutional validity of the National Company Law Tribunal (NCLT). Abhinav had blogged some of his preliminary thoughts on this case here.
We were fortunate enough to have the same team (senior counsel, Arvind Datar and upcoming IP litigator, Anand Padmanabhan) that won the NCLT case to argue this IPAB case pro-bono for us.
Prashant Reddy has a detailed explanation of the writ that we filed here. It also finds mention here and here.
Despite clear guidelines by the Supreme Court in NCLT to ensure that tribunals are manned by independent and competent adjudicators (not those under the control of the executive), the government continues to flout these norms. A case in point is the Electricity Appellate Tribunal, the constitutionality of which was challenged by Saptak Sanyal, an ex-student of NUJS who is now clerking at the Supreme Court. This case is being heard by the Supreme Court at the moment.
Similarly, I believe the constitutional validity of the Green tribunal (discussed by Namita) was recently challenged by a law student from the Ambedkar School of Excellence in Law, Chennai. What next? The Cyber Appellate Tribunal?
Friday, February 04, 2011
1.John Milbank argues that, "Liberal principles will always ensure that the rights of the individual override those of the group.” For this reason, he concludes, “liberalism cannot defend corporate religious freedom.” Discuss the 2010 Babri Masjid verdict in light of this statement.
2. The Bhopal Gas Tragedy: On Whether and How the Indian Companies Act, 1956 can be used to make a case for imposing social responsibility on corporations?
3. Are Whistleblowers the New Age Journalists? Critique in Light of WikiLeaks.
First Prize: 10000 INR
Second Prize: 5000 INR
Third Prize: 2500 INR
All three essays will be published on SLR’s website: www.sociolegalreview.in.
1. Submissions should be sent as soft copies to "email@example.com" in .doc or docx format only. Please state your name and contact information, including your university and year of study,on a separate page and not in the text of the essay. The title of the mail should be “Essay Submission 2011”.
2. The deadline for submissions is 1st April, 2011.
3. The length of the essay should be between 2500 and 3000 words.
4. Any clarifications should be sent with the title “Essay Competition Query” to
firstname.lastname@example.org. Joint submissions are not permitted.
5. The competition is open to any student anywhere in the world pursuing an undergraduate degree during the course of this event. It is open to students from all streams, including law.