Monday, July 22, 2013

Call for Submissions: NLSIR Volume 26(1)

[The following is an announcement from the National Law School of India Review]

The National Law School of India Review is now accepting submissions for its upcoming issue - Volume 26(1). The National Law School of India Review (NLSIR) is the flagship law journal of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. Over the last 20 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, Senior Counsel practicing at the Indian bar, and several renowned academics. 

The most recent issue of the NLSIR, Vol. 24(2), featured contributions by Prof. Martin Hunter (Leading authority on International Commercial Arbitration and Barrister), Mr. V. Umakanth (Assistant Professor, National University of Singapore) and Mr. Rajat Sethi (Founding Partner, S&R Associates) among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, in Action Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat's Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.

Papers may be submitted under the following categories:

1. Long Articles: Between 5000 and 8000 words, inclusive of footnotes. Papers in this category are expected to engage with the theme comprehensively, examine literature comprehensively, and offer an innovative reassessment of the current understanding of that theme. It is advisable, though not necessary, to choose a theme that is of contemporary importance. Purely theoretical pieces are also welcomed.

2. Essays: Between 3000 and 5000 words, inclusive of footnotes. Essays are far more concise in scope. These papers usually deal with a very specific issue, and argue that the issue must be conceptualized differently. They are more engaging, and make a more easily identifiable, concrete argument.

3. Case Notes and Legislative Comments: Between 1500 and 2500 words, inclusive of footnotes. This is an analysis of any contemporary judicial pronouncement, whether in India or elsewhere. It must identify and examine the line of cases in which the decision in question came about, and comment on implications for the evolution of that branch of law.

Submissions are preferred in Times New Roman font, double-spaced. Main text should be in font size 12 and footnotes in font size 10. All submissions must be word processed, and compatible with Microsoft Word 2003 and 2007. The Review uses only footnotes (and not end-notes) as a method of citation. Submissions must conform to the Bluebook (19th edn.) system of citation.

The NLSIR strongly recommends electronic submissions, though hard copies are also accepted. In case of hard copy submissions, two copies of the submission are required. Please submit the paper to mail.nlsir@gmail.com indicating which category your paper is intended for. All submissions should contain the name of the author, professional information, the title of the manuscript, and contact information. The last date for submissions to Volume 26(1) is November 1, 2013. Submissions may be emailed to mail.nlsir@gmail.com under the subject heading '26(1) NLSIR - Submissions'. Submissions received after this date will however be considered for the next issue.

Saturday, July 20, 2013

Former Chief Justice Kabir's legacy and some recent instances of judicial activism

Former Chief Justice Altamas Kabir has delivered a few judgments towards the end of his tenure, which are noteworthy.   Among these is Subhas Popatlal Dave v. UOI  in which, contrary to the decade-long tradition of the CJI not dissenting, he was in a minority.

Other Judgments (except Lily Thomas) delivered by him or as part of the Bench are:

State of Maharashtra v. Indian Hotels and Restaurants Assn

This defends the right of the bar dancers to pursue their profession.


Salil Bali v. UOI     

On why juvenile age cannot be reduced.

Faculty association of AIIMS v. Union of India

5-Judge Constitution Bench dismisses plea for introducing reservation in super-speciality. It says in Paragraph 19 that the very concept of reservation implies mediocrity!

Christian medical college v. UOI

2:1 judgment against NEET, in which Justice Kabir was in the majority, has invited a huge controversy. It appears that the judgment was leaked, before it was delivered, with a contributor to the Bar and Bench predicting the ratio of the judgment a few hours before its delivery. Also, the dissenting Judge has apparently recorded his displeasure that time was insufficient to facilitate proper discussion among the Judges.  All these have led to the demand that the Court should review this judgment, and if it fails, the Government should restore NEET.  Today's Hindu carries an edit, as well as an article on the issue on the oped page.

Lily Thomas v. UOI (Justice Kabir was not part of the Bench which delivered it)

This article in Indian Express compares Lily Thomas with the CB judgment in K.Prabhakaran while Rajeev Dhavan compares Lily Thomas with Saka Venkata Rao, delivered in 1953.  Justice Katju's critique of Lily Thomas can be found here.

Thursday, July 18, 2013

The Error in CEC v. Jan Chaukidar

The judgment of the Supreme Court on 10th July in CEC v. Jan Chaukidar has been seen in may quarters as part of the Supreme Court's concentrated effort to curb criminalisation of politics. I think the reasoning of the Supreme Court in Jan Chaukidar to reach the conclusion that all individuals in prison and police custody are ineligible to contest elections is incorrect and contrary to what the legislative framework envisages.

In Jan Chaukidar, the Court ruled that all those who do not have the right to vote under s.62(5) of the Representation of the People Act, 1951 (1951 Act) cannot contest elections because they do not meet the eligibility criteria under ss. 4(d) and 5(c) of the 1951 Act. Under ss. 4 and 5 of the 1951 Act, to qualify to be a member of the Legislative Assembly or the Lok Sabha, a candidate has to be an 'elector'. The term 'elector', as  the Court has identified, is defined in s. 2(1)(e) of the 1951 Act as: 'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (1950 Act).

The relevant disqualification is to be found in s. 16(1)(c) of the 1950 Act: "Disqualifications for registration in an electoral roll: A person shall be disqualified for registration in an electoral roll if he......is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections."

It is after this that the Supreme Court makes its problematic move. The judgment of Justices Patnaik and Mukhopadhaya brings in the denial of voting rights to certain categories of persons under s. 62(5) of the 1951 Act to be covered by the disqualification in s. 16(1)(c) of the 1950 Act

s.62(5) of the 1951 Act states that "Right to vote: No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub- section shall apply to a person subjected to preventive detention under any law for the time being in force."

The relevant consideration for whether you can contest an election as per the provisions of ss. 4 and 5 of the 1951 Act is whether the candidate is registered on an electoral roll. s.16 of the 1950 Act lays down situations where an individual cannot be registered on an electoral roll. Readers will note that s. 16 of the 1950 Act is concerned with the disqualifications for registration in an electoral roll while s. 62 of the 1951 Act is concerned with the right to vote. The Supreme Court's use of s. 16(1)(c) as the connection between the disqualification for registration in an electoral roll and the denial of voting right to those in prison or police custody is incorrect. s. 16(1)(c) is extremely clear that the disqualification from the electoral roll that it envisages arises only from provisions relating to "corrupt practices" and "other offences in connection with elections". It does not seek to cover prisoners and those in police custody per se. However, s. 62(5) denies voting right to "all" prisoners and individuals in police custody. 

Therefore, s. 62(5) of the 1951 Act is irrelevant to determining whether an individual is disqualified from being registered on an electoral roll under s.16 of the 1950 Act. And as per the definition of "elector" under s.2(1)(e) of the 1951 Act, the relevant provision is s. 16 of the 1950 Act. Therefore, an individual might not be entitled to vote under s.62(5) of the 1951 Act because she is in prison or police custody but that does not mean she is not entitled to be on an electoral roll. And what matters as far as the eligibility to contest elections is whether the individual is on an electoral roll.

The error of the Supreme Court lies in conflating the denial of voting rights under s. 62(5) of the 1951 Act and the disqualification of being on an electoral roll under s. 16(1)(c) of the 1950 Act. Of course, an individual can be disqualified from membership of Parliament or State Legislatures if she is convicted for any of of the offences listed in s.8 of the 1951 Act. However, it is very obvious that the scope of s.8 is very different from s. 62(5) of the 1951 Act.

Thursday, July 11, 2013

Conference Announcement: Human Rights Lawyering in India

The Alternative Law Forum, Bangalore and the Human Rights Program, National Law School, Bangalore are organising a conference titled "Courting Justice" at the campus of the National Law School, Bangalore, over the coming weekend (July 13-14, 2013). 

More about the focus of the conference, from the event description page of the ALF website:

"India has a rich history of the use of the legal system as a site of contestation for issues of social, economic and political justice. These legal battles have often been the culmination of a longer social struggle. In that sense, the expansion of the domain of rights in India has emerged not through benign judicial authorship, but through the interaction of social movements with institutions of law and justice, coupled with the use of innovative legal strategy. While we have extensive accounts of social movements and detailed histories of the judiciary, what seems to be missing is a qualitative account of the dynamics of human rights lawyering in India.

The challenge of human rights lawyering in the last decade has been considerable. From the euphoric era of social action litigation after the Emergency through the conservative judicial pronouncements of the 2000s, lawyers have had to rethink the legal strategies that they deploy. Many individual lawyers have devised innovative approaches and strategies to tackle emerging challenges in the field of human rights. These challenges include the issues of development, land acquisition, community resources and livelihood; anti-terrorism, mass crimes, increased militarism, impunity and the response of the criminal legal system; workers’ rights in the organized and unorganized sectors in the face of aggressive policies pertaining to economic globalisation;matrimonial rights in a changing legal and social scenario; and shrinking space for freedom of speech and expression, rights of the underprivileged and the marginalized and the misuse of repressive laws.  The knowledge, expertise and experience that vests with individual lawyers engaged in human rights work deserves to be shared widely among like-minded people, in the interests of empowering social movements further. In this context it is imperative that lawyers who are working on similar social issues exchange ideas, strategies, success stories and challenges and engage more closely to expand their collective knowledge- political, strategic and technical- to address the challenges of human rights litigation in the coming future.

At this conference, the focus will be on the motivation for lawyers to take up human rights work, the challenges they face, key cases they have been involved in, and legal strategies that have been successful and otherwise. The conference will facilitate   solidarities to be forged across geographies and specific areas of work and provide for the exchange of information on the work being done by human rights lawyers around the country. This could be a starting point for more regular interaction between individual human rights lawyers who are otherwise often isolated in their work.

We have invited 50 lawyers from across the country, and the focus will be on young lawyers practicing in the trial court and High Courts. Most of the lawyers at the conference will be from amongst a pool of human rights lawyers we have already interviewed over the last year, from Maharashtra, Gujarat, Tamil Nadu, Madhya Pradesh, Chhattisgarh, Jharkhand, Bihar, West Bengal, Andhra Pradesh, Assam, Manipur, Delhi, Jammu and Kashmir, Karnataka and Orissa. The format we use will ensure adequate space for interaction and deliberation among lawyers, as well as brief presentations by senior practitioners."

The themes of the conference include: i) Breaking Impunity: ii) Movement lawyering; and iii) Support structure for human rights lawyering.  The schedule of the conference, including names of confirmed participants, is available here.  Those interested in attending should email Siddharth (sid@altlawforum.org).

Sunday, July 07, 2013

Lawyer Impunity and a Search for Answers

Lawyers in India are known for frequently missing scheduled hearings, not being prepared, and unscrupulous billing practices. This recent op-ed of mine in the Hindu highlights some of these shortcomings and discusses potential remedies. (Others have recently commented on the negative effects of frequent lawyer strikes, including boycotts by lawyers who are upset with particular judges). There is plenty of blame to go around for the inefficiencies and procedural injustices we see in the judicial system. Judges who do not properly manage their courtrooms are certainly part of the problem. So is a government that doesn't fund the system enough, or in the most effective manner. Still, it's important to turn our attention to the bar because while this is where the public usually has its most direct interaction with the judicial system, it's also one of the most under-regulated parts of the system.

I've gotten a few reactions to the piece emailed to me so far, including a couple people who have asked whether I had any tips on how to pick a good lawyer. I don't. However, if any readers have any general advice feel free to leave them in the comment section (explicit advertising for - or against - particular lawyers will get screened). It might be useful for one of the legal news sources like Bar and Bench, Legally India, or Live Law to think about how they might be able to not only report on lawyers for lawyers, but also provide a screening mechanism for litigants who are interested in finding a lawyer - whether that's just refining some tips or actually ranking or certifying lawyers.

Saturday, July 06, 2013

Activism (legal and otherwise) of the Hindi newspaper, Patrika

I guess this recent piece of reportage of mine, for the New York Times - India Ink, falls in the "Other Things" category of this blog. Though it does chronicle how the formidable Patrika newspaper is using Public Interest Litigation and Right to Information Petitions as part of its activist arsenal. 

Monday, July 01, 2013

Jurisdictional Questions and the Pending Naz Appeal in the Supreme Court

Last week, in Hollingsworth v. Perry, the U.S. Supreme Court rejected an appeal from a lower court’s decision invalidating California Proposition 8. That Proposition amended California's state constitution to prohibit same-sex marriage. After a full-fledged trial, the Proposition was struck down as unconstitutional by a U.S. district court in San Francisco. Since California’s state government did not appeal this ruling, the U.S. Supreme Court held that the Proposition’s original sponsors had no standing to do so. Thus, the Court let the district court’s decision remain undisturbed. 

There is a similar gay-rights case presently before the Indian Supreme Court. It is an appeal against the Delhi High Court's 2009 Naz Foundation judgment. In Naz, the High Court held Section 377 of the Indian Penal Code unconstitutional for criminalizing sexual relations among consenting same-sex adults. Appeals were filed against this judgment before the Supreme Court. Hearings on the matter concluded in April 2012. We now eagerly await the Court’s decision.

Naz came before the Delhi High Court through a writ petition under Article 226 of the Constitution. The petitioner, Naz Foundation, is a non-governmental organization involved with HIV-AIDS intervention and prevention. It took two rounds of litigation (including a Supreme Court remand) for the Foundation to establish its standing to bring the case before the High Court. The National Capital of Delhi was the main respondent. The Union of India was also an original respondent in these proceedings. All the principal parties (the petitioner and two government respondents) accepted the High Court’s decision holding Section 377 unconstitutional as it applied to same-sex consenting adults. In fact, the Union of India, whose responsibility it is to defend and enforce existing laws, pointedly declined to pursue an appeal. This decision was taken by group of senior ministers some of whom praised the High Court's verdict.

Unfazed by the government's position, appeals were filled by a motley assortment of private individuals and groups. Some appellants had not even participated in the High Court’s proceedings, while the others were mostly intervenors. Through written and oral submissions, Naz Foundation's lawyers challenged the appellants’ standing to approach the Supreme Court. Yet, as an unofficial hearings transcript reveals, the bench did not spend much time on this jurisdictional question. In particular, the judges offered no recorded reaction to the Attorney General’s categorical statement that the government fully accepted the High Court judgment. Thus, the hearings appear to have concluded without properly debating the third-party appellants’ legal standing to maintain the appeal. Given last week's Perry decision, it is not too late for the Court to do so as it prepares to render a final judgment. At stake is an important constitutional principle and the Court’s own juridical practice.

To be sure, the Perry and Naz cases are factually distinct in many respects. The applicable constitutional frameworks also differ substantially even if some of the issues were broadly similar. At the same time, the two cases exhibit some striking parallels. In both matters, interested parties successfully challenged statutes unfairly targeting gay and lesbian citizens. After elaborate hearings, lower courts found these statutes to be unconstitutional. In each case, senior government officials (California state officials in Perry and the Union of India in Naz) accepted these findings and filed no appeals. Yet, private parties in each instance filed appeals against the underlying judgments. They sought to make up for the governments' refusal to appeal.

As Chief Justice Roberts points out in his majority opinion, the Perry appellants lacked standing for two reasons. First, although these appellants were the main sponsors of Proposition 8, they failed to establish any direct legal injury when the district court ruled the Proposition unconstitutional. Those, in fact, "injured" in the litigation were gay and lesbian plaintiffs whose same-sex marriages were blocked by the Proposition. Yet, having successfully obtained relief from the district court, those plaintiffs -- and the State of California whose interests were also affected -- had forgone their right to appeal. Second, the private Perry appellants were not the government’s defacto agents who could defend or enforce California’s laws. In addition, they could not be said to represent the people of California for purposes of the appeal.

Perry’s reasoning is strong and compelling. It emphasizes that, irrespective of the constitutional questions presented, appellants must have a proper interest to invoke an appellate court's jurisdiction. This is a well-settled common law principle. It is followed not only in the United States but in India as well.  It is certainly undeniable that the Indian Supreme Court enjoys a much wider jurisdictional base than the American apex court. Yet, like its U.S. counterpart, the Indian Supreme Court observes certain prudential and jurisdictional considerations to control its appellate docket. Party standing is one such consideration. Contrary to widespread perception, the Indian Supreme Court's extensive appellate jurisdiction and constitutional powers do not exempt appellants from explaining why the Court should take their case. The Naz appellants have failed to meet this requirement.

It’s important to remember that the Naz appeals are not writ petitions under Article 32 of the Constitution. Rather, the appellants challenge the High Court's judgment under Article 136. That provision enables the Court to allow appeals with “special leave.” As the Court has repeatedly emphasized, Article 136 is a discretionary jurisdictional base. Parties do not enjoy an unfettered right to invoke this remedy, and the Court must be satisfied that they have valid reasons to appeal. As the ever colourful Justice Krishna Iyer muses: “though parties promiscuously provoke this jurisdiction, the court parsimoniously invokes the power.”

It is true that, in Naz, the Delhi High Court decided important constitutional questions. However, when neither the petitioner nor respondents have challenged that decision, third-party appellants must establish how and why their interests are affected by it. In other words, if the principal adversaries in the underlying lis have fully accepted a lower court's findings, an appellate court should be extremely wary of reopening the case. To put it differently, the two teams have left the stadium after a full and fair game. They are content with the umpire's rulings and the final outcome. It seems inconceivable that spectators can now come out to the pitch and demand a rematch involving them.

In neither their written nor oral submissions do the Naz appellants convincingly explain how they are impacted by the High Court judgment. Interestingly, their reticence to address this central jurisdictional question is at sharp variance with their Perry counterparts. Indeed, the Perry appellants spent a considerable amount of time and money explaining why they were entitled to appeal from the district court. As Proposition 8's original sponsors, the appellants recounted how they had gathered signatures, raised money, and campaigned vigorously for the measure. But the U.S. Supreme Court was unimpressed. It held that, in defending Proposition 8, appellants were seeking to assert a governmental function which was impermissible. Of course, this logic provoked a mild dissent from Justice Kennedy. However, his minority opinion largely focused on why the appellants derived their standing by defending a law of their own creation.

By contrast, the private Naz appellants can hardly claim any involvement with either the original enactment of Section 377 or its subsequent retention on the statute book. In fact, it was only after the High Court’s judgment that some of them emerged from the shadows. When asked why they were before the Supreme Court, some appellants baldly claimed that homosexuality violates their religious sentiments. Others argued that they were seeking to uphold public morality. But it is difficult to see how such arguments assist the Naz appellants in maintaining their appeals.

At most, the appellants could claim that the High Court judgment infringes their constitutional right to religious freedom. But our Constitution does not protect every religious belief or practice. According to a long line of Supreme Court cases, only “essential” religious practices or traditions are constitutionally protected. Therefore, in order for the Court to sustain the appellants’ religious beliefs, they must establish that a proscription against homosexuality is an essential practice of their religious faith. Appellants do not even pretend to make this argument, which severely dents their jurisdictional claims.

Appellants’ standing is also unaided by their curious invocation of public morality. First, it is difficult to comprehend how the appellants can invoke their own conceptions of morality to demand restrictions on others' rights. Under our constitutional framework, only the State can impose such restrictions, and any such restrictions must be reasonable. Here, the High Court held that Section 377 was an unreasonable morality-based restriction on same-sex adults. The State accepted this decision. A group of private parties cannot now demand that the State reinstate the unconstitutional restriction. Second, as the Delhi High Court has pointed out, only constitutional, and not religious, morality can be a legal touchstone to restrict others' rights. Moreover, since securalism is a basic feature of our Constitution, appellants cannot insist that the State must make or enforce laws that uphold their religious morality while overlooking the fundamental rights of others.

It seems amazing that appellants defend a statute that two co-equal branches of government (the judiciary and executive) have clearly determined to be unconstitutional. Furthermore, the appellants overlook the fact that the third branch (the legislature) has made no attempt to overturn the High Court's judgment. Simply put, the Naz appellants’ jurisdictional position rests on a vague assertion of parens patria to serve their narrow and parochial interests. Previous invocations of the doctrine – mostly by the government -- have been problematic. It’s difficult to imagine how and why private parties should be allowed to do so here.

If third parties are permitted to maintain appeal without clearly establishing their legal interest, we run the risk of transforming an adversarial appellate process into an advisory or political one. Such a course of action would also undesirably loosen the locus-standi requirements in appellate litigation and open the floodgates to all kinds of cases. As the U.S. Supreme Court indicates in Perry, it has never before permitted private interveners to defend an unconstitutional statute where the government has pointedly declined to do so. To my knowledge, the Indian Supreme Court has followed the same practice. With the greatest respect, it should avoid reversing that practice in the Naz appeals.

Equally, it is difficult to see how the appellants can prevail even under the permissive standing rules of public interest litigation. In several PIL cases, the Supreme Court has refused to recognize the locus standi of third-party individuals and groups whose interests are not directly affected. A notable decision is Janata Dal v. HS Chowdhury, where the Court demanded that third parties must clearly establish their standing before pursuing any litigation in the public interest. This decision was followed in Win Chadha and Simranjit Singh Mann where the Court declined to hear cases filed by third-party litigants whose motives it suspected.

Most apropos is Justice PN Bhagwati's caution in SP Gupta. That great pioneer of Indian judicial activism warned courts against those who abuse the public interest:
cases may arise where . . . there is a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission. [B]ut if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action. [T]he effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.
Justice Bhagwati’s observations apply with alacrity to the Naz appeals. It is unclear whether these observations were brought to Justices Singhvi and Mukhopadhayay’s attention during the hearings. In any case, one respectfully hopes that the learned judges will reflect on Justice Bhagwati's words as they draft their opinions. Indeed, both judges have previously dealt with jurisdictional questions in other contexts. To mention just one example, their common decision in Village Panchayat Calatunge demonstrates that the two jurists have an excellent grasp over these questions.

More to the point, our Constitution does not ordain that the Supreme Court must settle every constitutional question. A high court is equally competent to authoritatively interpret our constitutional framework. There are numerous instances in which the Supreme Court has refused to intervene or preserved high court decisions by affirming them entirely. Naz is an artfully and elegantly woven decision. It requires no further embellishment. It should remain, I respectfully submit, undisturbed.

This post expresses my personal views. They do not represent the opinions of my co-bloggers or of any institution with which I may be affiliated. This analysis is not intended to prejudice or predict the Court's decision on the Naz appeals in any way.