Saturday, August 27, 2011

George H. Gadbois, Jr.

I am very pleased to welcome George H. Gadbois, Jr. to Law and Other Things. Professor Gadbois has been a distinguished scholar of Indian law and judicial behaviour for several decades. He obtained his Ph.D. from Duke University and is Professor Emeritus of Political Science at the University of Kentucky, USA. He is, perhaps, best known for his 1970 article on Indian judicial behaviour published in the Economic and Political Weekly. Earlier this year, Oxford published his long-awaited Judges of the Supreme Court of India: 1950-1989.

Thursday, August 25, 2011

Gadbois' New Book

Oxford University Press recently published a book on the Judges of the Supreme Court of India by George Gadbois. The book has been covered on this blog previously. In a review article in the current issue of the Economic and Political Weekly (available here), Sudhir Krishnaswamy and I examine the book and reflect upon the nature of Gadbois' contribution.

Tuesday, August 23, 2011

Substantive Due Process


In a book published this month by the Eastern Book Company, entitled “Due Process of Law”, I analyze the doctrine of substantive due process, in particular its evolution in American constitutional law, and its emergence in Indian jurisprudence. In it, I expand upon themes I previously wrote about (here and here), arguing that the term “substantive due process” has evoked three meanings in American constitutional jurisprudence, (i) “federal-state” due process, (ii) “fundamental rights” based due process, and (iii) substantive scrutiny of life, liberty and property deprivations. I examine the origins of the phrase “due process of law” in per legem terre in the Magna Carta, exploring the intellectual disagreement (though centuries apart) between Lord Coke and Blackstone over its meaning, its adoption into the fifth and fourteenth amendments to the American constitution, the tussle between Justices Frankfurter and Black on the American Supreme Court in the manner of its interpretation (at approximately the time that B.N. Rau met Justice Frankfurter and was advised to drop the clause), the “false start” of substantive due process doctrine during the Lochner era (leading up to its new beginnings during the Warren era), B.N. Rau’s own reservations with the “due process” clause even prior to his meeting with Frankfurter, the strong apparent support for the words “due process of law” on the sub-committee on fundamental rights and later on the constituent assembly of India itself and Dr. Ambedkar’s ambivalence towards the clause. I explore what I believe are three emanations of substantive due process doctrine in India: (i) the blending of boundaries between constitutional provisions beginning with the end of the Gopalan era and culminating in our “basic structure” jurisprudence, (ii) the strong substantive “arbitrariness” test with its origins in the moral illegitimacy of the court during the emergency, and (iii) the well known “right to life jurisprudence”. This book explores the juristic techniques employed by the Supreme Court of India in interpreting the Indian constitution and their strong resemblance to American "substantive due process" doctrine, but it does not attempt a history of the court’s handling of socio-economic legislation. I would like to invite interested readers to read further.

Does the Jan Lok Pal Bill reflect 'We the People'?

In the latest episode of Barkha Dutt's 'We the People', I argue that the Anna Hazare movement is driven by the urban middle-class, and this is reflected in the peculiarities of the Jan Lok Pal Bill. I also argue that the ideal Lok Pal must be one who is not 'all-powerful' (i.e. a sitting PM, higher judiciary, and MPs acting within Parliament must be outside its ambit), but one who is completely 'independent'. As I perhaps imprudently accused Justice Santosh Hegde: If his Jan Lok Pal Bill was law under Indira Gandhi's regime, she might well have used it to jail his father, the great judge K.S. Hegde (who stood up to Madam Gandhi).

I will be engaging in an online debate with the readers of rediff.com tomorrow (Tuesday, 23rd August) at 4pm. Please login to take the discussion forward.

Monday, August 22, 2011

Annaleela: hazarding a guess about its immediate outcome

The country is in the midst of a huge suspense, with Team Anna hardening its demands to end Anna Hazare's fast. When he was released (or rather released himself) from Tihar Jail, the Team Anna clarified that it secured permission to hold the protest for 15 days (with an option to review), and that Anna's fast is not fast-unto-death, but an indefinite fast, that is, he would fast as long as his health permitted. Implicit in this statement was the assumption that when his doctors say he is no longer fit to continue the fast, he would give it up. But statements, made subsequently by Anna and his team members belie that assumption.

It now appears that he is determined to continue the fast till the Government accepts the core demand to withdraw the Government's Lokpal Bill and introduce and pass the Jan Lokpal Bill in this session which ends on Sep.8. No one expected that Anna would refuse to leave Tihar Jail when freed, and instead insist on unconditional permission to hold his protest as a precondition to leave the jail. But can anyone predict what is likely to happen in the next 7 days or beyond?

Media has so far refrained from predicting the sequence of events in the immediate future, even while explaining what went wrong with the Government's response. They have also refrained from suggesting how the Government should specifically respond, given Team Anna's intransigence.

One of the curious paradoxes of this crisis is the much perceived dichotomy between political and legal options before the Government.  This distinction is interesting because the Central Government was accused of  adopting a purely legal option, rather than pursuing a political one, which could have helped to stem the crisis from acquiring the huge proportions that it has managed to subsequently.  Are the political and legal options inconsistent with each other?

 I welcome our readers and contributors to reflect on the political and legal options before the Government in the next few days, and advice specifically the steps that could prove to be effective in resolving the crisis.  Not that the Government would act upon our advice here, but it could be, at least, of academic value.

(The News and Article Alerts and Interview pages have some links to interesting opinion pieces on the various dimensions of this crisis while the Primary Sources page has some useful links to original materials, relevant to the discussion.).

Thursday, August 18, 2011

Corporate middle-class and Hazare

As the 'movement' around Anna Hazare gathers steam, I wrote this op-ed in yesterday's The Indian Express. It takes further some ideas I was exploring here .

Wednesday, August 17, 2011

Delhi University's Digital Book Archive

Readers may be interested in accessing Delhi University's archive of digitised books whose copyright has expired. The archive has some useful legal material.

Debate on the removal of Justice Soumitra Sen

Rajya Sabha has just begun the process of removal of Justice Soumitra Sen with Sitaram Yechury speaking on the motion.  The debate can be watched live from here. The Report of the Inquiry Committee and the text of the motion can be read at the Primary Sources Page. Here is a video record for Aug.17. The verbatim record of the RS proceedings can be read here, here, and here. After Justice Sen presented his defence, the Leader of the Opposition, Arun Jaitley began to speak on the motion, and has not yet concluded. The debate will resume at 2 p.m. tomorrow.

Tuesday, August 16, 2011

Madras High Court Turns 150

Our Independence Day also marks the 150th anniversary of the Madras High Court. The Hindu published an excellent opinion editorial on the subject by Justice Chandru who is a sitting judge. He calls for a social audit of the High Court's performance, which is something all our courts probably need. He also calls for doing away with the summer vacation and having rotational leave among judges and allowing Tamil as a language in which pleadings can be made. I'm also struck by this profile of Chandru who appears to have dispensed with colonial practices and customs that are still in vogue at the High Court.

Sunday, August 14, 2011

Ram Jethmalani exposes the fraud of frauds

When Ram Jethmalani exposed for the first time how the Central Government used the instrument of ratification to cover up corruption (on August 6 at CJAR convention in New Delhi -see Events page), it was another story waiting to be told in detail.  He has now followed this up in his column in Sunday Guardian today.  The Government signed the UN Convention Against Corruption on May 9.  Two things are worth noting: It took India more than five years to begin the process to ratify it after signing it towards the end of 2005.  And it did so with a controversial qualification, which seems to defeat the very objective of ratification.

Friday, August 12, 2011

Liberalisation, Contract Teachers, and Constitutional Moments

Liberalisation transformed India's economy and workforce. Government employees have been just as affected as their private counterparts, and perhaps even more so, as the government has increasingly employed contract workers to perform various state functions. Varun Gauri and myself look at how the judiciary has reacted to this shift in government labor policy in the education sector in this recent article in which we track all contract teacher cases that we could find over the last thirty years in the Supreme Court and the High Courts of Kerala, West Bengal, Gujarat, and Bihar. The paper finds that although almost never explicitly overturning precedent, the judiciary has increasingly become less sympathetic to contract teachers' demands.

This is particularly clear at the Supreme Court level - think about the general turn of events for government contract workers between Piara Singh in 1992 (in which the Court says regular employees should be the norm and lays out a path for regularization of contract workers) and Uma Devi in 2006 (where the Court stops judge-ordered regularization and says it's up to the government if there should be regularization). The Court eventually makes this general shift towards a more liberalized view of contract employees, but it lags behind the actual policy shift of the government, not fully adopting this position until the 2000s (with even some holdout judges currently on the bench). The High Courts generally lag even further behind than the Supreme Court.

The article concludes by arguing that the Supreme Court should consider reengaging with the government (and state governments) about appropriate labor policies that not only achieve better results for students, but better working conditions for teachers (some of this recommendation is complicated by provisions in the Right to Education Act, which depending on how it is interpreted may limit or ban contract teachers, but in actual practice hasn't done this yet).

Working on this article got me thinking about how many areas of supreme court precedent have likely had to essentially reverse or substantially change themselves to accommodate "liberalisation" (a term I am using loosely in this post for lack of space). Usually this was done without ever explicitly overturning precedent. This is an interesting phenomenon worth further exploration. But it also led me to reflect if the Constitution itself had provisions that no longer seemed to apply, that like old precedent in the contract labor example had essentially been overturned even if they had not been removed. In other words, to borrow Bruce Ackerman's language momentarily, did India in the early 1990's have a constitutional moment, but not amend its constitution to account for it? And are the judges accounting for it on their own instead through case law?

Indira Gandhi's Emergency can be considered a constitutional moment. It arguably left India with a Basic Structure Doctrine that at least in the short to mid-term was seen as unassailable, which profoundly shaped our understanding of the constitution going forward. However, that was not the only mark left on the Constitution. Indira Gandhi's trumpeting of a socialist reordering of the economy, which went beyond even her father's vision, ensured that the preamble would now read that India was a "socialist" state. The Directive Principles were also amended through the 42nd amendment to include 43A: "The state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry."

When the Emergency ended the new government repudiated Indira Gandhi's authoritarian overreach by passing the 44th amendment to remove provisions she had added to the Constitution that dubiously protected herself and her power during the Emergency. However, the 44th amendment did not remove the provisions that reoriented India towards a more socialist economy. Instead, it further strengthened this reorientation by removing property as a fundamental right and adding in the directive principles 38(2): "The State shall . . . strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities, and opportunities . . ." It essentially reconfirmed India's socialist entrenchment.

Now many of the provisions of the Indian Constitution even if conceived of as operating against the backdrop of a socialist or quasi-socialist state don't explicitly require such an economic system. For example, Article 43's provision of the state endeavouring to provide its citizens a living wage through suitable economic organisation does not require that the means of production of the economy be in state hands . However, I would argue 38(2) and 43A do come close to requiring this, and at least they can't be achieved under liberalisation as embraced by India in the 1990's. In the case of 43A making sure workers help run the companies they work for runs directly counter to liberalisation's focus on privately run industry. In the case of 38(2), liberalisation is seen by its supporters as a way to make everyone richer than they would be without it, but even its most ardent proponents would have a difficult time claiming that it reduces income inequality.

One might point out 38(2) and 43A are just directive principles, which are not judicially enforceable. And yet, in the late 1970's the government went to considerable lengths to add them to the Constitution to signal that a certain type of socialism popular in that time was now the guiding constitutional vision for the economy. Why didn't the liberalisers of the early 1990's do the same? (a lack of popular mandate springs easily to mind as one possible answer) But more to the point, what is the implication of the fact that they have not entrenched this changed economic policy in the constitution? And that the Constitution in some specific parts seem to directly contradict liberalisation's policies and in other parts arguably does in spirit? How should this affect judges when they try to interpret a document that clearly had envisioned a different economic ordering? Perhaps this means that liberalisation wasn't a constitutional moment (it certainly is still contested). Or maybe it signals a different approach by Parliament towards how the constitution will be viewed to relate to economic policy.

Wednesday, August 10, 2011

In defence of freedom of expression: Way clear for Aarakshan

The Bombay High Court has rejected the petitions challenging the film certification granted to the film, Aarakshan.  In this judgment,  the Bench, relying on the Supreme Court judgment in the Jagjivan Ram case, has said that the threat of unrest or protests cannot be the ground for denying certification to a film.  The petitioners wanted a direction to the directors of the film to screen the film to them, before its release.  Rejecting this plea, the Bench has expressed satisfaction over the CBFC's claim that it has taken precautions like consulting experts belonging to SCs and OBCs, and secured their consent, before granting the film the required certification. Moreover, the respondents have claimed that the film is not against reservation as such, as apprehended by the petitioners.

UPDATE:  The controversy is far from over with demands for ban on the film continuing to be voiced from disparate groups. The U.P.Government has already banned the film for two months. The issue appears to be whether certain characters in the film could use certain expressions, deemed offensive against certain sections of the people, even if the overall thrust of the film is not against reservations per se.  While I don't want to jump to conclusions before watching the film, the resolution of this controversy could offer lessons on how issues involving freedom of expression ought to be addressed. 

UPDATE 2:  With Punjab and Andhra Pradesh too banning the film, the director Prakash Jha has petitioned the Supreme Court for relief.  The case is coming up for hearing in the Supreme Court on August 16. See Court Updates for details.

Tuesday, August 09, 2011

Justice A.K.Ganguly's speech on Corruption





[The following are excerpts from the Supreme Court Judge Justice A.K.Ganguly's speech at the  release of the book on Corruption and Human Rights in India written by C.Raj Kumar, Vice-Chancellor of the O.P.Jindal Global University, and published by OUP on August 5. The Vice-President, M.Hamid Ansari released the book.  The Vice-President's speech can be read here.--VV]


I really feel honoured to be before you this evening in connection with the book release on a topic of great social relevance. If I may say so, Prof. Raj Kumar could not have timed it better. (laughter)  It reminds us of the great cricketers – the Indian cricketers – they have a great sense of timing. I think Prof. Raj Kumar has done the same thing. He has traced the history relating to corruption in society right from Kautilya down to this latter day ongoing debate on Lokpal Bill.  Well, I am still a sitting Judge of the Supreme Court where I have some restraints of the office. But as a student of law, I really feel that there is no substance in the debate that the Prime Minister should be outside the Bill.  If Lokpal Bill is meant for introducing scrutiny in the affairs of those who are holding a public office, nobody will dispute the position that the Prime Minister is holding a public office. Anyone holding a public office cannot shy away from public scrutiny.   As far as I know from the newspaper reports, the Prime Minister himself is willing to come under the scrutiny.  The more attempt is made to take him out of the purview of the bill, the entire effort will become more and more suspect. That is my view as a student of law. 

Now, the debate which is going on today on eliminatng corruption is a debate which is made, if I may say so, without proper appreciation of the ground realities.  Now, what is corruption?  Prof. Raj Kumar has attempted to define it. At the same time, he says it is difficult, it is incapable of precise definition.  Corruption is an attitude of life. It is a particular mental frame. A perverted mental frame. Corruption has a very strong presence in our social life.

At every stage, there is an element of corruption.  Every case of helplessness is a result of a corrupt act on the part of somebody else.  And the voiceless people. They hardly count. The legal framework which is there under our laws does not touch them.

Corruption is very deep-rooted.  In our society, a corrupt man is unfortunately offered a successful life. Let us accept this as the position. A corrupt man is not a social outcast. He is most of the time a hero, a leader.

The law is called Prevention of Corruption Act.  To my mind, I am not talking as a Judge, it is apt to say Preservation of Corruption Act.   There is a very important provision in this Act.  Unless there is a sanction you cannot proceed against the corrupt official.  Who is to give this sanction to prosecute? It is said that if this protection is not given, the courts will be flooded with frivolous cases of corruption.  So we are not being sincere on eliminating corruption. 

Look at the effect of corruption. Today the right to development is considered as a basic human right. Corruption means what? An undue advantage. What is due to me is denied to me.  There is a recurrent theme in our Constitution.  The theme is Constitutional governance. Article 37 says the Directive Principles are not enforceable by the Courts, but are fundamental in the governance of the State. Then the Fundamental Duties.  Constitution has emphasized that if you want to make the Constitutional promise, this country  must proceed on the basis of constitutional governance, which is not only your right, but also your duty.  Therefore, I have the feeling that if the act of corruption is unconstitutional per se, whenever somebody is acting in a corrupt way, it has to be tackled very seriously.  But who is to do that?

 I am happy that Prof. Raj Kumar has also talked about corruption in the judiciary.  He has referred to recent cases of impeachment.  But in the next edition, he may kindly correct that Justice Dinakaran is not from Sikkim High Court, but basically from Madras High Court.  Both the learned Judges referred to, I cannot defend them.  I feel sorry for them.  If the Judges of the High Court today are accused of this kind of things, then what will happen to elimination of corruption?  Even then I appreciate the candour and the courage with which Prof.Raj Kumar has attempted this book.  This is a very valiant effort.


Monday, August 08, 2011

The petitioner's saga in Nandini Sundar

The media's reportage of Nandini Sundar judgment mostly focussed on the judgment, rather than on how the petitioners fought and won the case, untrammelled by the dilatory tactics of the Chhattisgarh Government during the proceedings. In this article, the lead petitioner, Nandini Sundar narrates her personal exposure, as a non-lawyer, to the vicissitudes of the case, and what she learnt from it.  As she referred to in her Indian Express article, published a few days ago, the media's neglect of the other petition in this case, filed by Kartam Joga, and his own imprisonment by the State Government on charges unknown to many, is indefensible.  Unfortunately, despite Joga's legal victory in the Supreme Court, there has been no campaign to secure his release from jail.  To my surprise, much of the media's space (including this blog's) seems to have been spent on whether the Supreme Court Bench was correct in indulging in the ideological discussion in the first 20 paragraphs of the judgment. In my article, I  try to achieve some balance, by drawing attention to the relevant paragraph of the judgment, which perhaps convinces the reader why the Bench was justified in writing those paragraphs. The outcome of the Centre's review petition in the case will be instructive. 

Land Disputes, Gender and Legal History

I just wanted to flag a number of new articles that raise interesting questions that are directly relevant to our discussions on Law and Other Things.


Nivedita Menon, in the recent issue of the EPW, critically reviews the legal, political, ethical and social science debates over the Ayodhya judgment. Menon's discussion engages with several points raised on this blog by me, Tarunabh Khaitan, Arun Thiruvengadam, Aparna Chandra and through a guest post by Vikramitjit Banaji. Moreover, she incorporates the critique put forward by archeologists and historians on the use of historical evidence in a lawsuit.

Tehelka has an extensive discussion over the proposed Land Acquisition Bill that is likely to be introduced in the current session of parliament. A draft version of the Bill is here and the Rural Development Ministry is inviting comments from the public. Amongst the radical shifts in policy, it ties questions of land acquisition with resettlement and rehabilitation, defines rights of sharecroppers and makes attempts to make irrigated multi crop land immune from acquisition unless required for defence, national security of natural calamities.

Jeff Redding has a new working paper out on SSRN which engages with the Pakistani Supreme Court jurisprudence on the rights of transgendered individuals. Redding's project is interesting in part because of its subject, but also because of his methodology and the questions he asks. Like discussions on the blog, he raises questions about progressive legal judgments that emerge through a certain middle class benevolence and use of questionable categories, in this case, identifying transgenderism as a 'gender disorder'. He also attempts to provide an ethnography of a particular case, to trace how concepts and claims evolve through the course of a single litigation.

Prabha Kotiswaran exciting new book, Dangerous Sex, Invisible Labor: Sex Work and the Law in India, has been published recently. Kotiswaran challenges discourses of shame and criminalization surrounding sex work, and seeks to understand it through the lens of labour law. Methodologically, based on detailed ethnographies of the political economy of sex work in Sonagachi and Tirupathi, her work is an exciting break from a conventional theorization over crime, criminality and regulation.


Finally, a PIL filed by former intelligence bureau official and represented by Bangalore based lawyer Aditya Sondhi challenges the legality of the Intelligence Bureau itself. The Intelligence Bureau is set up on the basis of an administrative order dating back to 1887 and has not been reconstituted by a statute or recognized by the Constitution. Given that is occupies an amorphous space the PIL raises questions about its transparency, accountability and impact on rights of citizens (hat tip Prashant Reddy)

Saturday, August 06, 2011

Nandini Sundar and Naga Movement cases compared


By Arushi Garg

The Centre for Legal Philosophy and Justice Education at the NALSAR University of Law, conducted a discussion on the operationalisation of Emergency powers in India on 20th July, 2011. This discussion was conducted in the light of the Nandini Sundar decision, and was contrasted with the Naga Movement case (or the AFSPA case) that upheld the constitutionality of the Armed Forces (Special Powers) Act, 1954 (AFSPA). The discussion was moderated by Professor Amita Dhanda. The discussion commenced with a summary of both the judgments, and a brief analysis by LLM students from the University.
Much has been written and said about the decision on this blog and elsewhere. The link between military power and the Constitution has also been explored here. But a few points struck me as original, especially those that sought to juxtapose the two decisions.
The focus of the discussion was an iteration of the argument that was made (albeit rejected) in the AFSPA case. The legislative competence to regulate matters concerning public order  lies solely with the States. The Centre has attempted to usurp this power under the pretext of Article 355. It is essential to realize that Article 355 lies in a Chapter dealing with the Emergency powers of the Centre. What the Court in essence upheld in the AFSPA case was the invocation of Emergency powers, but without any of the constraints that have been provided in that Chapter, thus committing a fraud on the Constitution. While Entry 2A of List I of the Seventh Schedule allows for deploying central forced to “aid” the State, the flaw in AFSPA lies in the fact that  the State has not been given the power to refuse this aid—which makes the AFSPA a law imposed on the people of a State without involving or consulting them. In this sense the AFSPA is a law that seeks to govern without the consent of the governed.
What came out in many passionate responses was also the active and passive stereotyping of people who hail from the North-East as “the other.” It was disturbing to hear about how culturally and historically rich regions of the country have hardly been touched in most school curricula. While this educational bias is hard enough to deal with, it was worse still to hear about horror stories of prejudicial letters written by Vallabhai Patel to Nehru as far back as 1950, talking about how “The contact of these areas with us is by no means close and intimate. The people inhabiting these portions have no established loyalty or devotion to India.” This led to the suggestion of the possibility that the kind of Emergency provisions in operation were easier to uphold as constitutional in the AFSPA case because the areas in which they are being implemented are not “mainland India.”
But the key difference in the two cases lies in the fact that in Nandini Sundar the State was shirking its duty to protect the people by trying to outsource its obligations. The security of the people is the responsibility of the State, not some State-backed civilian militia and it is this abdication of responsibility that the Supreme Court refuses to condone.
So in both cases we see patently unconstitutional policies being challenged. In the AFSPA case however, the judges seem to be aware of the massive scope of abuse and choose to deliberately restrain themselves from striking the AFSPA down on that count through a medley of references to affidavits and directions. In Nandini Sunder, even when the Chhattisgarh government offers affidavits, the Supreme Court recognises their meaninglessness and insincerity for what it is.
The discussion also veered into the domain of what possible solutions could be implemented in the troubled AFSPA regions of the country. The problem there is in large part due to the deployment of the Army vis-a-vis the police force. The Army is trained to kill, the police is trained to control disorder. The institutional training of the Army goes to the use of force against enemies, not the citizens of their own country. It is unlikely that a solution that has failed continually for about sixty years will succeed anytime soon. Sadly, the permanence of it seems to have been assumed--no attempts have been made to even try and train the police between then and now.
Ultimately, however, it remains that the AFSPA is as much an attempt at legitimising arbitrariness as the deployment of the SPOs in Chhattisgarh was. As long as it continues, the disaffection of the people will remain a reality we cannot ignore.
(The writer is a student at NALSAR University of Law, Hyderabad)

Thursday, August 04, 2011

Corruption: NCPRI's alternative basket of measures

The NCPRI has now made public its alternative proposals outlining the measures needed to tackle corruption. Further details are available here, here and here. There are many substantive differences between these proposals and the Jan Lokpal Bill - I have only gone through them cursorily so far, and am waiting for more details to emerge, but it appears that the NCPRI proposals are much more nuanced, potentially more effective, and more respectful of constitutional norms and democratic propriety.