Tuesday, March 29, 2011

Pratap Mehta on Equality at Brown

Pratap Bhanu Mehta will be delivering three lectures at Brown University next month. Each looks simply fascinating and those in the vicinity should most certainly attend. The first lecture is on the Genalogies of Equality in India at 4-6 PM on April 11; the second lecture is on "Who am I" Representation and Equality in India at 5-7 PM on April 18; and the final lecture is on the Politics of Equality in Contemporary India at 5-7 PM on Apri 21. The details are available here.

Monday, March 28, 2011

Lawyers' Boycott of Accused: The Supreme Court Weighs In

Talha Rahman had written earlier on the issue of lawyers' deciding to boycott certain kinds of "accused". He now has an update to his earlier post as below.

In A.S. Mohammad Rafi v. State of Tamil Nadu, AIR 2011 SC 308, Justice Markandey Katju of the Supreme Court of India took the opportunity “to comment upon a matter of great legal and constitutional importance which has caused deep distress….”

In this case, the Bar Association of Coimbatore had passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them. This apparently was a case against policemen for assaulting lawyers in one of the many clashes between the police and the bar.

Taking judicial notice of the fact that “several Bar Associations all over India… have passed resolutions that they will not defend a particular person or persons in a particular criminal case… Sometimes the Bar Associations passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case...” , the Supreme Court held that “such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”

Rule 11 of Section II of Part VI of Bar Council Rules framed under Section 49(1)(c) of the Advocates Act, 1961, provides that “An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.” Such ‘special circumstances’ have been understood to mean circumstances giving rise to a ‘conflict of interest’. Resolutions similar to the resolution of the Coimbatore Bar Association are known to have been passed by the Bar Association of Faizabad and apparently also by the Bar Association of Pune that prevented the alleged ‘terrorists’ from having any legal representations. The impact of absence of effective legal representation and denial of right to have a counsel of one’s choice would probably be assessed when these cases reach the appellate stage.

Sunday, March 27, 2011

Copyright, Parallel Imports and Access To Education

A piece titled the "The Death of Books" sparked off a fiery debate around a proposed amendment to the copyright act. Two of us (leading technology lawyer Rahul Mathan and me) initially countered this doomsday prediction largely centred around the prospect of a phenomenon interestingly referred to as "remaindering".

In a Mint opinion piece, I argued that this was nothing more than a protectionist scream and that the onus was on publishers to demonstrate why there should be a restriction on the right of free trade. And why the section 2(m) amendment would destroy their fragile industry, as claimed.

Colleagues of mine differed, pointing me to Thomas Abrahams' critical piece which stated thus:

“The ministry mandarins also seem to have the absurd belief that publishers don’t bring in current editions. Every single major book — whether a medical textbook or the latest blockbuster like a Harry Potter or Stephanie Meyer — is available the same day as its release worldwide and 35% cheaper, with textbooks being 80-90% cheaper.”

Working under the aegis of the recently formed P-PIL, we began the arduous task of empirical investigation on this count. Many weeks later, we came up with some interesting numbers which demonstrated that the claims of publishers on this count are empirically false, at least in so far as legal educational titles are concerned.

Based on these numbers, we drafted a report which was then sent to the Minister of HRD, Shri Kapil Sibal. Our report and all data (in Annexures) are available on the P-PIL website. This is the second public interest matter that P-PIL picked up, the first one being a constitutional challenge against an egregiously constituted IPAB.

A pithier account of this report is available in this opinion piece I did for the Economic Times, the key extracts of which I reproduce:

"If enacted, a proviso to section 2(m) of the Indian Copyright Act would permit the import of legitimate copies of copyright works that have been sold once anywhere in the world.

This amendment aims to foster enhanced competition amongst distributors and thereby enable Indian consumers and students to access a wider range of books at lower prices in a timely manner.

However, publishers vehemently oppose this provision, claiming that there is no 'access' issue in the country since most foreign titles boast equivalent low-priced Indian editions.

This is simply not true. Promoting Public Interest Lawyering (P-PIL), a public interest association of which I am part, unearthed data relating to the acquisition of foreign titles by leading law libraries in the country, and concluded in their representation to the HRD ministry, as follows:

Of the total 1,554 foreign titles acquired by two leading law libraries during 2009-11, there were hardly any titles with equivalent low-priced Indian editions. Even in rare cases where such editions were available, they were never the latest ones. The librarians that P-PIL spoke to categorically stated that they were not interested in purchasing outdated editions of foreign titles.

Almost all foreign titles were available for prices equal to or higher than rates prevailing in the West. These had to be imported through websites such as Amazon or procured through leading local distributors who would place orders directly with publishers abroad. The shipping charges escalated the costs for India, and in one case, the price differential between India and the US was as high as 165%.

Given this stark pricing scenario, the section 2(m) amendment is the need of the hour. For, it will foster a more diverse set of distributors keen on picking up cheaper copies from any part of the world, without seeking copyright owners' permission.

If the country's leading law schools (national law schools) are faced with this severe pricing and access issue, the vast majority of the other 913 law colleges can only be expected to be worse off, given that many of them are much poorer and do not have the necessary wherewithal to procure titles online or be serviced by the leading distributors."

Friday, March 25, 2011

The CVC Judgment

In an article in the current issue of Frontline, I reflect upon the CVC judgment, and the Supreme Court more generally.

Sunday, March 20, 2011

Guest Post: National Identification Authority of India Bill

It is my pleasure to publish yet another guest post from the folks at the Pre-Legislative Briefing Service.
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As our fourth project, at the Pre-Legislative Briefing Service (PLBS), after the Nuclear Liability Bill, The Prevention of Torture Bill & the Legal Practitioner’s Bill, we have studied and prepared a ‘Briefing Document on the National Identification Authority of India Bill, 2010 (NIAI)’. (The document can be accessed over here).

The Bill which seeks to regulate the implementation of the Central Government’s ambitious Unique Identity (UID) program has been drafted by the Unique Identity Authority of India (UIDAI) which is headed by Nadan Nilekani and introduced in the Rajya Sabha on the 8th of November, 2010 by the Prime Minister in his capacity as the Chairperson of the Planning Commission. (The text of the Bill can be accessed over here). The Bill has been referred to the Parliamentary Standing Committee on Finance headed by BJP leader Mr. Yashwant Sinha.
The ‘Briefing Document’ covers four main issues:

(a) Privacy Safeguards in Clause 33: This section examines the scope of ‘privacy rights’ in India and compares the privacy safeguards in the NIAI Bill with other legislations like the Income Tax Act, the Information Technology Act and the Criminal Procedure Code.

(b) ‘Excessive Delegation’: This section of the report examines how the proposed Bill delegates certain ‘essential legislative functions’ to the Authority itself. One such example if the delegation of the power to define ‘identity information’ & ‘biometric information’ despite the fact that the UIDAI strategy document defines both concepts in precise terms.

(c) Interplay with Information Technology Act, 2001: Given that most of the offences under the proposed NIAI Bill deal with misuse or intentional breach of the Authority’s computer resources there is potential for an overlap with the IT Act, 2001. The focus therefore is to ensure a minimal overlap.

(d) Independent Grievance Redressal Mechanism: The Bill delegates the function of setting up a grievance redressal mechanism to the Authority itself. Given the importance of the aadhaar number scheme to future social security schemes, it is crucial that the grievance redressal mechanism be created by the Parliament itself, since the Central Government bureaucracy is loath to regulate itself.

Thursday, March 17, 2011

SC on India's international obligations

The South Asian Human Rights Documentation Centre has joined issue with the Supreme Court in this recent EPW article. The comment is regarding the Supreme Court's anger at Teesta Setalvad forwarding letters written to the Special Investigation Team on the Gujarat killings to the Office of the UN High Commissioner for Human Rights. The Supreme Court had reportedly said that it will not tolerate 'foreign interference' in the riot cases.

The SAHRDC's rejoinder is welcome. International law obligations have been voluntarily assumed by India, and as a branch of the State, the Supreme Court has an obligation to enforce them. There is a strange touchiness in all organs of the Indian state when an international body takes up any investigative role in a matter relating to human rights. India has refused to sign any optional protocol to human rights conventions (or the Rome Treaty establishing the International Criminal Court) which have international enforcement mechanisms that go beyond mere reporting by the state. Unsurprisingly, a similar touchiness is not visible in trade or intellectual property matters. So the state worries about international enforcement of human rights norms but not trade norms - this cherry-picking makes the postcolonial narrative which highlights the divide between the global North and the global South look like an excuse to avoid human rights scrutiny rather than a principled opposition to an unequal global order. Especially at a time when India is actively seeking greater role in the international order, it must recognise that a position of Indian exceptionalism to international human rights scrutiny will become increasingly untenable.

Monday, March 14, 2011

Legal History Moment: Colonial Law and CIA Agents

Elizabeth Kolsky, whose pathbreaking book we reviewed here has written an opinion piece in the DAWN, highlighting how the Raymond Davis case follows a pattern established in colonial India where white men in South Asia can get away with murder. She argues, "While Americans and Britons have fuzzy memories about the history of foreign occupation and intervention in South Asia, Pakistanis remain haunted by the past and present legacies of empire."

Sunday, March 13, 2011

Misadventures of the Supreme Court in Aruna Shanbaug v. Union of India

I have co-authored this post with Mrinal Satish, JSD Candidate at Yale Law School.

The Supreme Court’s decision this week in Aruna Shanbaug v. Union of India raises important questions about the meaning of life, death and their relationship to law and to state power. Unfortunately the judgment in the case not only fails to grapple adequately with these issues, but also betrays faulty legal reasoning and an utter disregard for the law and the legal process. It gives short shrift to important constitutional issues, and is more concerned with foreign precedents than with Indian statutes, case law, rights and process. In doing so, it gets it all terribly wrong.

The case revolves around Aruna Shanbaug, a 60 years old woman who was violently raped in 1973. She sustained severe injuries resulting in brain damage, because of which she has been in a permanent vegetative state for the past 37 years. Ms. Shanbaug is being taken care of by the staff of the KEM Hospital in Mumbai, where she was herself a nurse at the time of the attack. In 2009, a petition was filed before the Supreme Court by Ms. Pinki Virani as Ms. Shanbaug’s next friend. She sought a direction to the KEM Hospital to stop feeding Ms. Shanbaug and to let her die peacefully instead of prolonging her life. Thus the question before the Court was whether Indian law permits passive euthanasia for a person in a permanent vegetative state.

A. The Virtues of being Pedantic
The case was filed as a petition under Article 32. Upfront the Court clarified that the petition did not make out any violation of a fundamental right; and that therefore a petition under Article 32 was misconceived. However, “in view of the importance of the issues involved” the Court decided to “go deeper into the merits of the case.” Was the Court right in disregarding issues of its own jurisdiction? Or are questions of jurisdiction merely fodder for pedantic quibbling amongst lawyers? We believe that there are virtues to being pedantic in such matters. The court is after all a wing of the state, and as such a wielder of public power. Law is one instrument of keeping a check on public power and of ensuring accountability in its exercise. The system of rule of law cannot exist in bits and pieces. It either stands together or falls. If the Court can pick and chose when and where it wants to follow the law and when it is dispensable, we will move from a system of rule of law to the rule of judges. It is a sad fact that this episode is not a one-off instance of the Court deciding that if the law is inconvenient (as opposed to unconstitutional) it can disregard the law for the purposes of its own decision-making. As Pratap Bhanu Mehta has argued, the Court has increasingly taken to acting because it can, and not because it has the legal authority to do so.

It is also not as if declining jurisdiction in the case would have left the petitioner without recourse. As the Court itself pointed out, High Courts have power under Article 226 to deal with the matter. Declining jurisdiction in favour of the Bombay High Court would also have provided for greater deliberation on the issue by engaging at least two levels of the judiciary, and many more heads and voices.

B. Taking Rights Lightly
The focus on procedure is important also because process itself is often the site for substantive violations of rights. This case itself serves as an example. In one segment of the judgment, the court discussed its appointment of a group of doctors to examine Ms. Shanbaug’s condition. Along with their report the doctors submitted a CD which contained a video showing Ms. Shanbaug’s condition. The Court screened the CD before the entire courtroom “so that all present in court could see the condition of Aruna Shanbaug.” We don’t know if the CD covered Ms. Shanbaug’s full medical examination (hopefully not) but even without it, the public screening of a video detailing the physical and mental condition of a patient lying in her hospital bed in a permanent vegetative state, is surely a violation of her privacy and dignity rights. This did not even occur to the Court, and in this, the judicial process treated Ms. Shanbaug as an inanimate object of study and pity, rather than a rights bearing citizen entitled to respect and dignity.

Taking rights out of the picture is also evident in the very framework of the judgment. The decision is based on the following (il)logical sequence:

1. If passive euthanasia is not expressly prohibited by law, it is permitted.
2. Passive euthanasia is an omission.
3. Omissions are not criminalized.
4. Therefore passive euthanasia is not criminalized.
5. Therefore passive euthanasia is permitted.

Let us examine each of these claims. Reading the judgment it appears that the Court started out from the premise that if passive euthanasia is not expressly prohibited by law, it is to be permitted. However, Article 21 already provides for a broad prohibition against the taking of life except according to procedure established by law (and here the court agreed that Ms. Shanbaug is still alive in the legal sense). Therefore, with Art. 21 as the guiding principle, the starting premise rightly ought to have been – if the taking of life is not expressly permitted by procedure established by law, it is to be prohibited. This would have shifted the focus to examining whether in Indian law there is any law that permits the taking of life in such circumstances, rather than examining whether there is a prohibition to the effect. [Should the law permit the taking of life in such circumstances- that’s a different question entirely, and we would argue that in matters of life and death and the control of the state thereon, it should be for the legislature to decide.]

The Court however did not engage with the right to life at all, except to point out that in Gian Kaur v. State of Punjab [(1996) 2 SCC 648] it had held that the right to life does not include the right to die. It completely failed to consider the relevance of the substantive protection of the right to life for the case at hand. This is symptomatic of the disregard for law flowing through the entire judgment. There was hardly any discussion of Indian law beyond the brief mention of the Gian Kaur case, and Section 309 of the Indian Penal Code (IPC), which criminalizes attempts to commit suicide. The court relied heavily on foreign precedents instead, and that is why its other premises fail.

C. What’s Law Got To Do With It?
Even with the Court’s starting position that passive euthanasia is permitted unless expressly prohibited, the Court did not investigate Indian law to examine whether there exists such a permission. The decision was based on the erroneous major premise that omissions are not criminalized under Indian law. The Court stated, referring to the distinction between active and passive euthanasia that:

An important idea behind this distinction is that in passive euthanasia, the doctors are not actively killing anyone; they are simply not saving him. While we usually applaud someone who saves another person’s life, we do not normally condemn someone for failing to do so. If one rushes into a burning building and carries someone out to safety, he will probably be called a hero. But, if someone sees a burning building and people screaming for help, and he stands on the sidelines – whether out of fear for his own safety, or the belief that an inexperienced and ill-equipped person like himself would only get in the way of the professional firefighters, or whatever – if one does nothing, few would judge him for his action. One would surely not be prosecuted for homicide (Atleast, not unless one started the fire in the first place)...[T]here can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life. Even if you think it would be good for people to do X, you cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be arrested. Some persons are of the view that the distinction is not valid. They give the example of the old joke about
the child who says to his teacher, “Do you think it’s right to punish someone for something that he didn’t do?” “Why of course not,” the teacher replies. “Good,” the child says, “because I didn’t do my homework.” In fact we have many laws that penalize people for what they did not do. A person cannot simply decide not to pay his income taxes, or not bother to send his/her children to school (where the law requires sending them), or not to obey a policeman’s order to put down one’s gun.

Thus, according to the Court since omissions are not crimes, and since passive euthanasia is an omission, there is no criminal prohibition against it. Is that understanding correct in law?

The classic definition of a crime requires an act (actus reus) and a corresponding mental element (mens rea). Whether an act includes an omission has always been a tricky question. A.P.Simester and G.R.Sullivan in their book “Criminal Law” point out how omissions in general are not criminalized. They highlight exceptions to the rule, which include:

• Specific Statutory and common law offences. Eg: Omission to file tax returns
• When the accused and the victim have a special relationship. Eg: Parent-child.
• Duties imposed on persons assuming a particular responsibility. Eg; Doctor-Patient

Hence, in common law, a doctor will be liable for at least some omissions that cause harm to the patient. In the decision of the House of Lords in Airedale v. Bland, the Law Lords held that omissions do not constitute the requisite actus reus for homicide. In Aruna Shanbaug, the Court accepted this as true of the Indian position as well, without examining the IPC.

Section 32 of the IPC (to which the Supreme Court did not refer) states: “In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done, extend to illegal omissions.” Thus, an illegal omission can be the requisite actus reus for a crime. Does that extend to homicide? Section 300 of the Penal Code defines murder as an act (and by virtue of Section 32, an omission) which is done with the intention of causing death. It is pertinent to note that Exception 5 to Section 300 of the Code states that if a person causes the death of another with that person’s consent the resultant crime will still be culpable homicide not amounting to murder. Consequently, a doctor can be held liable for culpable homicide not amounting to murder, even if he/she caused death with the patient’s consent. The Code thus expressly criminalizes both active and passive euthanasia even if done with the patient’s consent.

What then about a person in a persistent vegetative state, and therefore incapable of consenting? It is useful to refer to Section 92 of the Indian Penal Code to understand the legislative mandate. This section, in dealing with the necessity defence, says that a person can do an act which benefits another, if that other person is not in a position to consent to the act. The section in its proviso, clearly says this does not extend to causing death or doing any act which is likely to cause death of that person. Applying this section to the present context, the Penal Code provides that if a patient is not in a position to give consent, a doctor can do anything that benefits the patient, short of actions that cause death or are likely to cause death.

Returning to omissions, it is important to remember that Section 32 refers to illegal omissions. What does “illegal” mean? Section 43 of the Indian Penal Code defines the term to mean “…everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action.” It can possibly be argued that since withdrawing life support to a person in a persistent vegetative state has not been made an offence, or expressly prohibited by law (though as we have shown, that might not be the case because of Section 92), the only question that remains is whether the person or his/her “next friend” would have a ground for civil action against the doctors. This would depend on the duty of care that the doctor owes towards the patient. It could be argued that if the doctor believes that it is in the patient’s “best interests” to stop treatment or withdraw life-support, s/he might be satisfying the duty of care required. However, this is a gray area, one on which there is no clarity in Indian law. It is hence possible to argue that withdrawing life support from a person in a persistent vegetative state is not an “illegal omission.” It was open to the Court to take this interpretation. The problem with the Aruna Shanbaug decision is that it did not discuss any of these provisions. It assumed that under the Indian Penal Code, omissions cannot constitute the actus reus for murder, or for any other crime. It blindly relied on Airedale to come to this conclusion. Was this reliance justified?

In Airedale, the House of Lords held that a doctor may withdraw care from a patient in a persistent vegetative state, with judicial approval. It is very important to note (which the Court did not) that in English law, the terms “murder” or “manslaughter” are defined not in a legislation but through case law. Hence, the House of Lords in Airedale had the power to state that under the English law of homicide, a positive act is required to constitute the actus reus. By virtue of Section 32, IPC, it was not open for the Indian Supreme Court to follow suit.

Airedale also suffers in being an ill-reasoned judgment where the Law Lords took leaps of logic which defy explanation. It is no surprise that Airedale is a much criticized case (See for instance: J.M. Finnis, Bland: Crossing the Rubicon? 109 L.Q. Rev. 329 (1993); John Keown, Restoring Moral and Intellectual Shape to the Law after Bland, 113 L.Q. Rev. 482 (1997); Alexander Mc Call Smith, Euthanasia: The Strengths of the Middle Ground, 7 Med.L.Rev 194(1999)). More importantly, to arrive at its conclusions, Airedale relied on prior judgments of the House of Lords, based on English common law. These do not apply in the Indian context, since there are express Indian laws covering the field.

For example, in Airedale the Law Lords based their judgment primarily on whether a doctor’s act/omission will be illegal if s/he acts in the “best interests” of the patient. To do so, they relied on a previous decision of theirs in In Re F (1991). In that case, the Law Lords had held that providing treatment to an unconscious or mentally incompetent individual, without that person’s consent would not amount to assault or battery if it was in the patient’s “best interests” to do so. They used the principle of necessity to come to that conclusion. In Airedale, they extended this principle to ceasing treatment to a patient in a persistent vegetative state. However, this logic does not apply in the Indian context, since as we have argued earlier, unlike in the United Kingdom, the principle of necessity is codified in Section 92 of the Indian Penal Code, and it does not extend to causing death. Therefore in the Indian context the logic of In Re F cannot extend to the circumstances under consideration in Aruna Shanbaug.

Thus, the Supreme Court in Aruna Shanbaug blindly relied on Airedale v. Bland, quoting extensively from the judgment and relying almost entirely on it, without considering that the law stated there is contrary to the Indian position. It also did not deal with the Indian statutory position at all to support its decision. Thus it engaged not in judicial borrowing, but in judicial imitation.

D: Legislating from the Bench
The judgment ended with the Court adopting the Vishaka strategy of legislating on the issue till the legislature decides to deal with the matter. This strategy has become well entrenched in Indian law, but there is need for questioning it. By stepping into the shoes of the legislature in this manner, the court gives itself plenary legislative powers (as opposed to incidental powers of legislation that are a concomitant of adjudication) that does not appear to have much basis in constitutional theory or in law. By turning to the judiciary for legislative intervention instead of the legislature, this procedure not only creates democratic deficiencies but also weakens the entire structure of the democratic State. In this case itself, the Court requested a team of doctors to not only examine Ms. Shanbaug, but also give the court their views on euthanasia. The only other person that the Court heard, apart from the parties to the case, was the Court appointed amicus. The courtroom space privileges certain voices over others, and judges get to pick and choose whom they want to hear. It is not as if these dynamics are not present in the legislative process. The problem is that these dynamics are wired into the very structure of the court process. Are we then not better of trying to reinvigorate the legislative process rather than using courts as substitutes thereof?

Potpourri

1.Shekhar Hattangadi's comment in Afternoon Despatch and Courier on Supreme Court's recent 'What the hell is going on in this country' remark.

2.My critical comment on the Gujarat High Court's controversial judgment holding bhoomipuja a secular activity, and on the Supreme Court's recent observation lamenting Government's failure to reform personal laws of religions other than Hinduism. This link takes you to Tahir Mahmood's response to the SC's remark.

3. Was the National Commission for Minority Educational Institutions correct in declaring Jamia a minority institution? Read this article in recent Frontline.

4. The list of contents with links of the recent issue of Frontline is available here.

Saturday, March 12, 2011

Unleashing the Fourth Branch

In this piece in today's Hindu I discuss the need for more legal infrastructure to tackle implementation failures in social welfare policy in India, building off the idea of the proposed district grievance redressal officers in the NAC's note on its draft National Food Security Bill. The core of my argument is that I think strong independent prosecutors are necessary, creating essentially a fourth branch of government that is a watchdog implementer. I end by saying that it is unlikely this branch will be as uniformly coherent as something like the Ministerio Publico system in Brazil, but instead be more of a patchwork of agencies. These will grow out of reforms of current watchdog agencies like the Lokayuktas and the development of new agencies on a more ad hoc basis to fill pressing implementation failure gaps, like the proposed district grievance redressal officers. However, policymakers and others should keep certain core principles in mind when creating or reforming such offices. I outline a couple of these principles that I believe are pertinent to current debates, but I think there is much work that still needs to be done to refine and understand what these principles should be for agencies in this emerging fourth branch.

Compromise Formula in Rape Sentencing

This guest post has been contributed by Mrinal Satish, JSD candidate at the Yale Law School. Mr Satish has taught criminal law and procedure for several years and is working on a thesis examining sentencing policy in India. He can be reached at mrinal.satish@yale.edu

“Court frees Rapists, Agrees they can pay Victim” bemoaned headlines on February 24, 2011. The judgment of the Supreme Court in Baldev Singh v. State of Punjab led to discussions as to whether the Court was right in what it did. The headline though was not exactly accurate. The Court did not really “free” the three rapists, but reduced their sentence to the period undergone (three and a half years). Though the minimum sentence for gang rape is 10 years, it used its discretion to impose less than the minimum. It also enhanced the fine imposed on each of the defendants to Rs.50,000 from Rs. 1000. It asked them to deposit the amount within 3 months, failing which the amount was to be recovered from them as arrears of land revenue. Was the sentence justified? I don’t think so.

S. 376(2)(g) of the Indian Penal Code deals with gang rape. On the issue of sentence, it provides a minimum punishment of 10 years imprisonment and a maximum of life. A court has the discretion to impose less than the minimum sentence if it finds “adequate and special reasons” for so doing. Enhanced sentences were introduced by amendment in 1983, whereby the Legislature indicated that it considers aggravated rape (including gang rape) deserving of higher punishment. It is also pertinent to note at this stage that in earlier cases the Supreme Court has ruled that the term “adequate and special reasons” ought to be strictly interpreted. (See for instance: State of Andhra Pradesh v. Bodem Sundara Rao, AIR 1996 SC 530).

In Baldev Singh, the Supreme Court used the "adequate and special reason" exception to impose a less than minimum sentence. What were the adequate and special reasons cited? First, that the incident was an old one and had taken place 14 years prior to its judgment and secondly, that the parties had entered into a compromise. It also mentioned that persons accused of rape and the victim were now married (albeit not to each other) and that the victim had two children. Further, the parties had reached a compromise stating that they wanted to “finish the dispute” and that there was no “misunderstanding between them.”

Let us look at the reasons expressly considered by the Court in reducing the sentence. Should delay in judicial proceedings be considered as a factor for reducing sentences? I believe that it should not for two reasons. First, our judicial process is not known for its timeliness. Delay in proceedings is a common occurrence and hence ought not to be considered as a mitigating factor. Second and more importantly, the victim does not have control over the judicial process and delays therein, even though the accused might. If she did, one could justify reducing the sentence. As the system presently operates, it is patently unfair to the victim and is an incentive to the accused to delay proceedings.

Further, can a “compromise” between the victim and the accused persons be considered a factor in reduction of sentence? As the Court notes in the judgment, S. 376(2)(g) is not a compoundable offence and parties cannot withdraw or compromise the case, even with the permission of the court. Most crimes (including the present one) are considered as crimes against the entire society, which is why the State prosecutes the crime on behalf of the victim and society. If we let victims compromise their cases, when the law does not permit, we end up undermining the entire system. It could also lead to situations where victims are coerced into agreeing to a compromise. If we as a society want to change this position, it is for the Legislature to amend the law. Does it intend to do so? When plea bargaining was introduced in India a few years ago, the Legislature expressly exempted crimes against women from being subject to a plea bargain, because of the often unequal bargaining power of the parties involved, as well as the expressive importance of prosecuting such crimes. This to me indicates that the Legislature did not want to permit “compromises” where victims of crime are women. The Supreme Court in this has hence acted contrary to express legislative mandate. Unfortunately, this now constitutes precedent and before it leads to trading in sentences, one hopes that the Court corrects this anomaly at the earliest.

This case also reflects the state of sentencing in rape in India. I have been studying this issue and I find that determination of sentences based on patriarchal notions of shame, value, honour and chastity of the victim is a prevalent practice. Recently, the Supreme Court reaffirmed its underlying assumptions in rape adjudication when it said: “The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person” [State of U.P. v. Chhotey Lal, (2011) 2 SCC 550]. The Court has also frequently said that rape leads to “deathless shame.” Questions of value and shame are determined by a victim’s chastity and her “marriage-ability.” Thus, past sexual conduct (even after the repeal of Section 155(4), Indian Evidence Act) or subsequent marriage of the victim, have significant impact in reduction of sentences. This is also where compensating the victim for this “loss of value” in return for reduced sentences for the accused comes into play. Courts have in the past awarded compensation and used that as a factor for reducing custodial sentences. Baldev Singh’s mention of the current marital status of the victim and the accused, and of the fact that the victim now had children from her marriage, is therefore consistent with the past practice of Indian courts and of the use of sentencing as a site for perpetuation of stereotypes.

Friday, March 11, 2011

Fake Courts!!

I was flabbergasted to read about the fake courts in Coimbatore. The economics of an illegal act generally means that there has to be a substantial benefit, monetary or otherwise, from such illegal act. I have not been able to understand what possible joy could the people who were (are?) running these fake courts deriving. And pray who are the gullible who actually succumbed to these courts? I have not been able to decide as to what this says about our regular courts- should they be flattered that somebody is imitating them or worried that people are taking away their work? I am also curious if these courts actually managed to resolve some disputes- if their success rate was better than regular courts, that would be something to talk about!!

Thursday, March 10, 2011

Legislative Assistants to Members of Parliament (LAMP) fellowship programme

PRS Legislative Research is seeking exceptional, highly-motivated young Indian citizens for the Legislative Assistants to Members of Parliament (LAMP) Fellowship. The fellowship provides invaluable exposure and serves as a launch pad for future careers in management, law, public policy, journalism etc.

Each LAMP Fellow will be assigned to a Member of Parliament, and will support the MP in their Parliamentary duties. The current batch of LAMP Fellows have been engaged in working with Members of Parliament on several parliament related research tasks. In addition, they have been interacting with several key opinion leaders and policymakers.

For details of the fellowship and application process, please log onto www.prsindia.org/lamp.

Tuesday, March 08, 2011

No atheists in our census

Inspired by the recent ad-campaign by the British Humanist Association calling upon people without religion to say so in their census data, I had a look at the Indian census form. While question 3 on the form demonstrates progressive politics in that it seeks to enumerate transgenders alongside men and women, Question 7 on religion is quite regressive. This is what it says:
Q 7. Religion:
(Write the name of religion in full)
Also give code in box if found in the list below
For other religions, write name of the religion in full but do not give any code number.

The list contains the following religions: Hindu, Muslim, Christian, Sikh, Buddhist, Jain

Thus, the only option atheists and agnostics appear to have is to leave the option blank. as But that can look like an omission and does not necessarily indicate the non-religious nature of the individual's belief system. In the 2001 Census, 727,588 people left the column blank. They are reported not as atheists or agnostics, but as 'Religion not Stated'.

Indeed, the parallels with transgenders are obvious. Presumably, before the introduction of 'other' in the sex question, trans-people had to leave it blank or choose between male or female. And like trans-people, the state and the society may not approve of atheists, but surely they must be counted.

Another noteworthy entry: under Q 9 on 'Disability', 'mental retardation' is listed as one of the disabilities. Who uses language like that any more?

Update: This post by Nivedita Menon on experiences that some women have had with census enumerators is fantastic - Arun, thanks for pointing it out.

Monday, March 07, 2011

On Judicial Activism

I have recently had the chance to collect some thoughts on activism by the Supreme Court in this recent article in the Times of India.

In this article, I argue that there are three key areas in which our SC differs significantly from its counterparts in other constitutional democracies. One of these differences with regard to justiceability of a subject matter clearly points towards greater activism. The second difference, pertaining to the volume of cases, suggests that our SC may appear to be more activist than it really is. Finally, in terms of intensity of review, I argue that our Supreme Court may actually be more deferential than activist.

I also note the special duty that academics have in holding judges to account:
"We must demand [of judges] that their judgments are based on sound reasons, and are unaffected by fear, favour or public opinion. Their accountability, however, is policed not by politicians but by the academy. Barring a few exceptions, our academia in general and legal academia in particular, has not always performed this scrutinizing duty diligently. However, the sheer volume of decisions makes it difficult for judges to write sound judgments and for academics to criticize them."

Three important issues that I did not discuss in this short newspaper piece: first, the important judicial appointments debate and its impact on judicial diversity and activism. Do women, dalit and minority judges decide differently? Do they tend to decide differently? Is the current appointments system less conducive to diversity?

Secondly, it will be interesting to see how many 'remedies' that appear in judicial orders, especially in socio-economic rights cases, were in fact just a judicial insistence that governmental policy (either already in place before the litigation, or crafted during the litigation and in response to it) be implemented. There may be an under-theorised dialogic model of adjudication already taking place in our courts.

Finally, we seem to have a majoritarian rather than a counter-majoritarian court. What else explains its relative success with socio-economic rights but a relatively poor record on civil liberties?

I will be grateful for comments.

Thursday, March 03, 2011

Call for Papers: Special Issue on R.P Anand

NLU Jodhpur's Trade, Law and Development journal is bringing out a special issue edited by Prof. B.S Chimni on TWAIL (Third World Approaches to International Law). The issue is dedicated to the memory of Prof. R.P Anand. Although the deadline for submissions has passed, the Journal welcomes short pieces discussing Prof. Anand's work, persona and legacy. Further details can be found here.

Wednesday, March 02, 2011

Copy Cat

Anyone who has studied or taught in Indian lawschools will have confronted the widespread culture of plagiarism that exists. This is not unique to the legal academy, as Manjari Katju charts in the state of plagarism in Indian social science research in a special issue of the EPW.

Among the other articles, what might attract some readers is Prashant Iyengar's attempt to "rescue Indian academic research not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy". Iyengar draws extensively from his experience at NALSAR to suggest that the problem of plagiarism acquires its present day moral connotations because we have at some level bought into a 'Western Romantic' idea of creativity based on individual genius. Indian traditions, he suggests, allow for a greater heterogeneity of both expression and authorship. He later contrasts two notions of creativity, the first as that of generation and the second that of rearrangment. He suggests that lawschool research might not be 'generative' but is moving towards "recombinative creativity". He argues that the introduction of new plagiarism checking software, will compel students to rework their scholarship in more original terms. He draws an analogy to Lawrence Liang's work on pre-print cultures, where scribes who manually copied existing texts did not do their work slavishly, but shaped the texts they copied, often transforming it fundamentally. Iyengar ends on a more cautious note, stating pragmatically, though not necessarily following the logic of his own argument, that different standards must apply for students and 'established academics'. Those interested in college plagiarism might want to look at Jonathan Gingerich and Aditya Singh's recent study.

I think it would be more productive to move Iyengar's arguments away from the parochial concerns of collegiate plagiarism to larger questions about legal writing in India.

For instance, can we use this insight to understand how Indian judgments are written? Rajeev Dhavan famously castigated the attitudes of Supreme Court judges “as typical of the decision-making habits of middle-class metropolitan Indians : technically unpredictable, not uninfluenced by imitative cosmopolitan habits, conditioned by native instinct to a depth not yet predictable by the psychologist or documented even by the novelist, the dramatist or the fiction-writer, and suffering from an over-sensitive opinion of their lonely and unparalleled position.” He was particularly critical of their use of large texts of foreign judgement completely out of context. Could the idea of 'recombinant creativity' be productively used to understand comparative constitutional law as it as evolved in India?