Sunday, November 30, 2008

The Mumbai Bombing: An Eyewitness Account

[To all doomsday prophets- we do not look all that bad to the Nigerians. Maybe even to some others as well - Thanks to Sanjay R.Hegde who forwarded this mail to me. I am posting this considering our readers' interest - V.V.]

Kamar Bakrin who was in India and was close to the scene of the bomb blast when terrorists hit Mumbai last week wrote about his experience

We were in the middle of the main dinner course when we heard a distinct boom from nearby. The restaurant, reputed for serving the best seafood in Mumbai had been very quiet before then. “Is it another explosion?” I asked my host warily. “No, there must have been an accident in the kitchen” she replied with a nervous laugh. Understandably so. Minutes earlier, her mother had called to enquire where we were and if her Nigerian guest, myself, was staying at the Taj Mahal hotel, a favourite of foreign businesspeople. There had been a report of a terrorist attack there. However, these had become fairly regular in India, enough not to attract more than the most casual comments from other diners as the news gradually filtered in. Probably a small amateurish explosion, we thought and continued to enjoy our meal.
I did make a nervous joke about how, if it was an explosion then, the second terrorist must have left his watch at home and therefore failed to synchronise with the first.

We were no longer laughing, when, shortly after, someone confirmed that it was indeed an explosion barely two minutes walk away from the restaurant. However, it was only after dinner at about 11.00pm, when we drove off and found the adjoining streets cordoned off that the enormity of the situation began to sink in. Little did I know that we were witnessing one of the worst terror attacks on India, already being called their own 9-11. But for the darkness of the night one would have thought it was the midday rush-hour, traffic that had built up and was crawling quite slowly.

My host’s phone rang every other minute as different people called to either give or receive information. As we sat in traffic the radio stations reported the news that about eight places had been attacked. That was of course when my phone chose to die. Talk about Murphy’s Law. I was left to fret about what would happen when the news got on CNN and people tried to reach me, either to confirm my safety or, I thought cynically, to get first hand gist. How their anxiety would rise when they found my phone switched off. On September 11, 2001, I was in Boston from where the planes that were crashed took off, and now I was beginning to think ”hmm, what is it about me...?”

My hosts were absolutely wonderful. The main host had cancelled his flight scheduled for that night and he called frequently to check that we were okay. When we finally got to the hotel I turned on the TV and was for the first time confronted with the extent of the horror of that night. My initial relief at having chosen to stay at a hotel near my hosts offices quickly turned to anxiety as I heard dogs barking madly outside. I looked out of the window only to realise that right behind the hotel was a train station. The terrorists had attacked two of the trains that very night! I was convinced that the dogs must have been agitated by the sight of terrorists lurking in the shadows. Needless to say, it was not a very restful night and I rushed off first thing in the morning to board my 1.30pm flight to London.

As one would expect of a tragedy of this magnitude, there are enough human interest stories to provide material for at least a dozen books, countless hours of television programming and even a few movies. Where does one begin? The stoic attitude of the people as they dealt with the events of the night? The British lawyer sitting next to me on the flight back was, a guest at the Taj who was actually in the bar when they struck? He described how himself and 59 others crowded into a room for the night, how they quickly ran out of water and also had to set up makeshift toilet arrangements. He recounted that among the dead were two of the world’s top chefs; there was also the tall beautiful hotel staff who had attended to him that very night. Another gentleman on the flight had actually been fired upon at close range by one of the attackers but he was not hit.

However, as I reflected on the still unfolding events, some lessons for Nigeria emerged which were too compelling for me to view this event from just the human interest angle. They are made even more compelling by the fact of India’s position in the world relative to Nigeria: a former British colony, with a very large poor population still struggling to define its place in the world.

But here the similarities seem to end and the highly instructive lessons take over.
In the heat of the crisis a, TV reporter sharply criticised the government for its poor handling of repeated terror threats. As we speak she has not been arrested by police for treason or charged with malicious slander. Neither has her television station been shut down by overzealous men of the state security agency
Despite the dispersed nature of the attacks and the fact that the attackers came by boat, there was no knee-jerk closure of borders, forced cancellation of flights or dusk to dawn curfew and blanket restriction of movement.

There was no indiscriminate ‘stop and search’. In short there has been a thoughtful measured response to a mindless crime and assault on a society. The security agencies have been calm and focused without resorting to intimidation or harassment. It is obvious that there is a common understanding of who the real enemy is; terrorist criminals not law-abiding citizens. There have been no reported incidents of extorting money from innocent commuters whose only crime is their desire to engage in legitimate pursuits in a lawless society.

There has been no indiscriminate crackdown on Muslim communities, no destruction of Muslim neighbourhoods in an attempt to ‘fish out’ the perpetrators, yet several successful arrests have been made all across the city. It is clear that the Indian nation has at this critical time demonstrated a sense of decency, of collective maturity clearly with a keen sense that the world is watching and that the opinion of civilised societies does matter.

My flight acquaintance spoke very highly of the commandos who have worked bravely to flush out the terrorists. Describing them as highly skilled and professional, he even promised to write them a personal letter of appreciation! I suppose it helps that the heads of their agencies have not embezzled the funds intended for their training, equipment and welfare while granting them license to survive on checkpoint takings, renting out of weapons to robbers and serving as bodyguards to the economic saboteurs. It also helps that they have not been converted to thugs to facilitate the stealing of elections and beating up defenceless young women for obstructing traffic.

The media was fully present, providing timely, accurate, insightful on-the-spot coverage. The news channels focused on the most important news item of that day, providing very useful information rather than regaling viewers with reports of what an ‘Excellency’ said through an ‘able’ representative at the start of a ‘timely and relevant’ 3-day seminar on whatever.

Oh, and by the way, the lights did not blink even once nor did the cell phone networks become congested all through the thick of the crisis.
Finally, I watched with a mix of sadness and admiration, the last few minutes in the life of Hemant Karkare, head of the Anti-terror squad. A tall distinguished-looking officer, he arrived at the besieged Taj, stepped smartly out of the car and got a quick briefing. He calmly collected and put on a flak jacket and helmet, then proceeded to walk towards the main building. He was not to come out alive. Of all the events of the day, that brought tears to my eyes. That singular event seemed to capture everything we so sorely lack in Nigeria: exemplary leadership, practiced from the front-lines without pomposity or bombastic pronouncement, just a deep sense of responsibility and ultimately the willingness to make the supreme sacrifice.

What more can one say?

• BAKRIN Sent this piece from London while in transit to Lagos…

24/7 news and 'No time to Think'

One aspect of this week's atrocity in Mumbai is the questionable role of 24/7 news channels. This report claims that 'Vying for fresh material, they announced attacks where none had happened, backtracked shoddily, and some even claimed to have “interviewed” a terrorist. They harassed the hostages who had just escaped the gruelling experience, and plied their families with intrusive questions.' Smallest details of the security operation was telecast, with terrorists inside the hotels receiving this information till the cable connections were cut off. A 'similar situation in the West would have never seen TV cameras so close to and so revealing of action by security forces', claims this column.

These comments find echo in the insights of this very interesting new book No Time to Think: The Menace of Media Speed and the 24 Hour News Cycle by Feldman and Rosenberg, which 'focuses on the insidious and increasing portion of the news media that, due to the dangerously extreme speed at which it is produced, is only half thought out, half true, and lazily repeated anonymous sources interested in selling opinions and wild speculation as news.'

Should this incident force us to rethink 24/7 news channels? There might yet be a silver lining. After all, these channels did expose the sheer incompetence of the government and its agencies in responding to the situation. To quote another columnist, 'What the television coverage reveals most glaringly, however, is a complete lack of coordination and sense of purpose among the various organs of the state responsible for fighting terror. Television brilliantly captured the scramble and the confusion in the early hours of the crisis. The early pictures of harried officers briefing commandoes hurriedly donning their bullet-proof typified the confusion at the top and while it was great television it did not speak well of a state that should have its terror and media strategy in top gear.'

The jury may still be out, but we do need to evaluate the role of these channels more closely. A negative assessment, however, need not necessarily recommend stringent regulatory control of the sort recommended by the controversial Broadcasting Services Regulation Bill, previously discussed on this blog here, here and here. It might still be possible to explore less draconian legal or self-regulatory measures. For example, its provocative headline notwithstanding, this Outlook column recommends a limited discretion to security agencies to impose a 'delay' of three to six hours on the broadcast of anti-terror operations. This may be a sensible, and minimally infringing, restriction on free speech and will be sufficient to deal with at least some of the problems of 'live' reporting.

Saturday, November 29, 2008

Nilekani's sobering analysis of the Mumbai attacks

Now that the attacks are officially over, the analysis will begin. Today’s papers – from across the globe – carry several pieces that offer commentary on the tragic events in Mumbai, many of which give voice to the anguish, hopelessness and frustration experienced by many Indians. Of those offered so far, I was struck in particular by the views of Nandan Nilekani. Channeling Rudyard Kipling’s “If” in the title of his op-ed in today’s Indian Express, Nilekani’s call for calm is particularly insightful and timely. His powerful reflections reveal a close understanding of the legal measures invoked against terrorism in India historically, as well as comparatively across the globe in the aftermath of 9/11. Here are some extracts:

In the past seventy-two hours, we witnessed an event that has transformed the psyche of a nation. Since the bomb blasts that ripped through our cities and towns three months ago, there have been familiar remarks of how stoic our urban citizens are — echoes of comments Mumbaikars received after the train explosions in July 2006 and the bomb blasts in 1993. Again this time, as the day waned and the situation began to stabilise, there were comments on our ability to move past disaster, and how people would simply pick up the pieces and move on. But these statements have a hollow feel — we have been struck so many times that one must eventually wonder if what we see in the aftermath is stoicism or helplessness. But the actions governments take during times of fear are often not ideal ones. Indian politicians have, since the blasts in July, mostly debated bringing back draconian laws resembling the repealed POTA and TADA. The BJP leader Venkaiah Naidu noted that “an extraordinary situation needs an extraordinary law”; an opinion that the UPA government has come around to holding themselves. This recent attack will likely speed the passage of such a law.

We’ve seen the impact such laws can have in the US and Britain, following the 9/11 attacks and the Iraq war. Massive powers of detention and interrogation cast the net too far and wide — what you end up with is a disproportionate amount of false positives and captured innocents, which muddies the efforts against terrorism. The record of POTA and TADA in India has been dismal — they have been used to target particular communities, and as tools for revenge. The violations of human rights that result are unacceptable. These laws become all the more dangerous when we consider the terrorists who led the recent bombings. These were not easily identifiable men. They looked like us — like any of the millions of young men in our cities, dressed in jeans and T-shirts, yuppie-like down to their hair-cuts and their glasses. And such laws make democracies less so, and by hurting innocent civilians, serve as powerful recruiting tools for terrorists.

There is no question that we face dangerous times. Governments are going to react in ways that demonstrate concrete action and strict enforcement to the public. Our impulses will be to strike back with force, and with draconian measures. But our weaknesses unfortunately, lie not in the lack of a terrorism law, but within the core of our institutions — our police forces, the effectiveness of our intelligence agencies, the surveillance work we carry out. Since the 1970s, all these once reputable institutions have become deeply politicised, to the point that they have not been allowed to work without interference. Today, the frozen systems of our judiciary ensure that nearly half a million people are languishing in our jails without trials. Our cities are weak and ineffectual, unable to deal with any crisis. A weakening economy can also add to the militancy — the lack of broad-based reforms is increasing the pool of unemployed, angry young people. The sense of unfairness and alienation among them is waiting to be exploited by divisive politicians. Unfortunately given our talent for workarounds, these are issues that governments will shy away from. But without facing these challenges boldly, the prevention of Terror attacks will be elusive, and we will continue to be vulnerable.

Calm — that emotion that seems so distant and unnecessary in such moments of crisis, will be critical to get us through this crisis. And the danger of thoughtless retaliation comes not just from our governments, but also from our citizens. Our country has large numbers of minority religious communities, and there will be enough demagogues eager to whip up anger against convenient targets. We can choose, at this critical moment, to let divides like religion dominate and frighten us, sidelining our real issues. Or we can adopt fundamental reforms and policy ideas to win the battle against militants. Terrorism is fundamentally about igniting terror — about overwhelming us with fear. We have to resist this fear rather than be subjugated by it.

Nilekani’s call for calm and peace has, of course, been proffered and reiterated by several of our more responsible leaders. We can only hope that they will be heeded in the aftermath of this traumatic event.

Secularism: Yesterday, Today and Tomorrow

That was the subject of discussion held at the Indian Law Institute on Nov.27 to celebrate the Law Day on Nov.26 and to mark the launching of a movement, Constitutional Cause. The new forum aims to fill a void, by disseminating ideals and values of our Constitution. The speakers included Justice Altamas Kabir of the Supreme Court, Justice Madan B.Lokur of Delhi High Court, Dr.R.K.Nayak, Member of Rajya Sabha, Union Minister for Labour, Oscar Fernandes, ILI Director, Dr.Chandrasekaran Pillai and Dr.M.P.Raju, advocate and the President of the CC. As one speaker said: "Constitution is a moral document, while judgments are value statements. All battles don't reach the Supreme Court. They are decided in the streets." Other Speakers said Indian secularism is only a facet of the right to equality. As an elastic principle, it cannot be stretched to a breaking point, they cautioned.

Friday, November 28, 2008

Reservation and empowerment: A debate on K.Krishna Murthy case

The discussion on K.Krishna Murthy case is perhaps a fitting tribute to the memory of the former Prime Minister, V.P.Singh, who passed away yesterday. Sudhir Krishnaswamy's piece raised the same questions posed before the Constitution Bench which heard this matter, but it appeared to me, that the author, perhaps, was not aware of the response of the ASG, Gopal Subramanium to these questions.

As I have a copy of ASG's written submissions on the matter, I have tried to seek answers to some of Sudhir's questions, in the light of ASG's arguments. These answers should not suggest that I agree with the ASG on this issue; I have an open mind, and I look forward to the likely debate it may provoke.

1. The right to vote or elect candidates, and the right to contest elections as a candidate, are not fundamental rights, but statutory rights - subject to the provisions of the statute.

2. 73rd and 74th Amendment Acts advance the notion of substantive equality.

3. The amendments do not address a conflict of rights, but rather - a justice of rights. The amendments are a testimony to constitutionalism as modifying the classic liberal human rights model to the discipline of a 'politically inclusive, adjudicative, negotiated constitutional secularism'.

4. Reservation in the post of Chairperson is essential, as the Chairperson discharges important functions and exercises some control over the functioning of the panchayat institution. Further, an enabling provision is made in the case of BCs, which permits States to make provisions for reservation of seats in BCs. Empirical literature suggests that the experiment of reservation in panchayats and local bodies has been extremely successful. These reservations must be viewed in the context of empowering weaker sections by ensuring their participation and representation in local governance.

5. For the purposes of Parts IX and IXA of the Constitution, the term 'backward classes' may be interpreted as socially and educationally backward classes, as understood in Indira Sawhney and subsequent decisions.

6. The inquiry whether equality has been achieved no longer ends with numerical equality; rather the equality clause has been held to require resort to a standard of proportional equality which requires the State, in framing legislation, to take into account the private inequalities of wealth, of education and other circumstances. (J.Mathew in State of Kerala vs. N.M.Thomas).

The full text of the ASG's submission is here.

ADDENDA: The following summary of the oral arguments may be of use:

Justice Raveendran: The objection was about vertical reservation. Women's Reservation was a fringe issue. Panchayat Raj is not an issue. Thrust of argument (of Mr.Rama Jois) was on BCs and the Chairperson reservation. As the BCs already have the major share, what is the purpose of quota for BCs?

ASG: It is not anybody's case that the BCs did not exist when this Amendment was passed. Such an averment is not there. 17 States have enacted laws under Article 243D(6). That Mandal did not recommend such a reservation cannot be a ground to attack these amendments. Mandal was a report, it was not exhaustive. I don't think it would lead to a clamour.

Rama Jois: The A.P.Assembly has passed a resolution urging OBC quota in Assembly elections.

ASG: Let's cross the bridge when it comes.

Justice Raveendran: Empirical data was available for SC/ST/WOMEN when Parliament/assembly reservation was made. No such data was available in the case of OBC quota in local bodies. We don't want to enter areas where there is no contest at all. Mandal Commision found that in political arena, OBCs did not require reservation.

ASG: The fact that BCs exist is a justification.
Justice Raveendran: Were BCs prevented from contesting in PR, so that they required protection. For women, SCs and STs, it could be said yes,they were prevented and discouraged from contesting, so it was necessary.

Justice Sathasivam: In the case of notification by Karnataka, (making reservations for OBCs in local bodies), there are no objects and reasons.

ASG: Right to vote is a creation of statute, it could be tailored, based on qualifications. If reservation is needed, and given, it leads to equality.

Justice Raveendran: Where reservation is not needed, but provided, it becomes a divisive force.

ASG: Constitution uses conscious expression to enable identification. Certain groups are to be treated disadvantaged. Apprehension of disintegration will vanish. Affirmative Action in education and employment is not exhaustive to achieve equality. We truncate the essential question. Do such BCs need integration with active State's intervention? Goal of Part IX, Article 15(4) and Article 243D(6) are same, and all intend to promote equality. Purpose of Part IX is to promote Article 14. Is there a need? Yes, as long as BCs exist, and require protection under Article 14, it is a self-evident basis for classification.

Justice Raveendran: Rama Jois' challenge was against the State Legislations (under Article 243D(6)), and not against the Constitutional Amendment.

ASG: Constitutional Amendment must be seen not in the light of State legislations. We treat an amendment by itself. Political equality is essential to ensure living condition, and dignity of people; reservation for them is justified. This amendment is not liked because it marks a silent revolution, people are empowered. Earlier BCs were not allowed to chair Panchayat meetings. It is a change. The amendment intensifies, and strengthens the basic structure. Take Article 330. It is different from Part III. A.330 is an additional protection as a means to a possible end. If BCs need special provision in Articles 15 and 16, they need Part IX for participation. The structure of governance is bigger than right to vote. Part IX aims at equalisation of status, not equalisation of opportunity. Status is not defined in the Constitution. Caste, when it is subjected to disabilities of social class, becomes a class.

(A somewhat similar summary can be found here)

Mumbai Mayhem: Search for an effective counter-terrorism strategy

The ongoing war in Mumbai will no doubt revive the debate over whether we need a Federal Investigation Agency sooner than later. While Vivek Reddy has argued here that our Constitution indeed provides for greater Central role in tackling terrorism, there are equally valid arguments why in a cooperative federalism like ours, it makes sense to involve the States on tackling federal crimes. This article in the South Asian Terrorism Portal throws light on, among other things, why we cannot ignore the States in counter-terrorism.

The point which the SATP article rightly makes is that the existing Central outfits do not inspire any hope that an addition of a Federal Bureau to tackle terrorist offences would make any difference to our current efforts. See this item on the CNN-IBN website on how the NSG arrived late in Mumbai -nearly nine hours after the first assault.

The lesson probably is that if a Mumbai-like crisis happens, Central agencies should not wait for request from the State Governments to respond. The State Government clearly underestimated the threat initially, which caused the delay in its request for Central forces. Therefore, there is a case for the Centre to step in, on the basis of its own assessment, if the State Government wavers. This is not to suggest that the State Government must be ignored, but only that the Centre must take a pro-active role, and take the State into confidence, before going ahead with its strategy. I would agree with Vivek that one doesn't need a Constitutional amendment for such a proactive role by the Centre in times of a crisis. The former NSA, Brajesh Mishra suggests a greater degree of coordination between the IB and the State agencies than what we find today.

Obviously, nothing prevents such a coordination. No one says a Constitutional amendment is required for this. B.Raman, former additional secretary, Cabinet Secretariat, also makes the case for a Central Investigating Agency, but his underlying theme is coordination between the Central and State agencies, which can be achieved even now, without going through the rigmarole of actually creating such an agency at the Centre.

Thursday, November 27, 2008

The Indian Journal of Constitutional Law - New Issue

The second issue of The Indian Journal of Constitutional Law published annually by the MK Nambyar SAARCLAW Chair in Comparative Constitutional Studies at the NALSAR University of Law, Hyderabad,has just been brought out. The journal is associated with the Constitutional Law Society, NALSAR, a student initiative. The Journal encourages scholarship in Comparative Constitutional Law.

Among the articles, Tony Blackshield's article on National Constitutions in an International World deserves special mention. Gary Jacobsohn’s piece (Bommai and the Judicial Power a view from the U.S.)is also very interesting, as is the one by Ran Hirschl. Dhavan’s review of Sarbani Sen’s recent book is caustic, and to some of us, it appears unnecessarily harsh.

Arun and I have also contributed articles to this issue.

Wednesday, November 26, 2008

Justice Katju's Piece in the Hindu

The Hindu published this rambling opinion piece by Justice Katju on the need for tolerance in India. While I appreciated the underlying theme of the piece and Justice Katju's earnest call for greater cultural inclusion, I wonder whether it was really worth devoting a large amount of opinion editorial space to promoting the cause of a private academy.

Constitutional Significance of a Classical Language

It strikes me that opinion columns in Indian newspapers have greatly improved in their style, analysis, and content. Previously, opinion writing was dominated by retired bureaucrats who bloviated about their experiences in government and littered their writing with convenient anecdotes. Thankfully, that trend is on the decline. I'm especially pleased that law and legal developments are being covered with greater frequency, and at the risk of shameless self-promotion for this blog, I urge you to pay close attention to Venkatesan's occasional digests with links to op-eds by lawyers and legal commentators.

I thought I'd highlight this column by M.A. Baby, Kerala's Minister for Education and Culture, on the demand for Malayalam to be declared a classical language. I found it especially interesting, readable, and made a good case for the point at issue. Actually, I was surprised that Malayalam is not yet a classical language. I would have thought that the country's first fully literate state would have sought that status for its state language a long time ago. But this issue also raises the question of whether a classical language is entitled to any constitutional or legal benefits. From a constitutional perspective, there are two official languages, English and Hindi. There are 20 (?) other languages listed in the Eighth Schedule. But the Constitution is vague about their precise legal standing -- they are protected against interference on account of Hindi development under Article 351 and representatives of these languages are to constitute the Official Languages Commission (whose mandate does not seem to focus on these languages explicitly). Would our readers have more insights on this issue?

Tuesday, November 25, 2008

Dr.Rajeev Dhavan's submissions in the K.Krishna Murthy case

Dr.Rajeev Dhavan completed his submissions as the counsel for the respondent State of Bihar before the Constitution Bench in the K.Krishna Murthy case. LAOT thanks him for sharing with us a copy of his written submissions. Here, I have tried to summarise his submissions.

Recap: The real thrust of the petitioners was reservations for OBCs in Panchayat institutions are invalid; and reservations for Chairpersons by rotation would operate only to choke off the rights of the general candidates to Chairperson posts.

Salient Points

1. If the petitioners' challenge succeeds, then it would not just strike down Articles 243D(2) to (6) and 243T(2) and (6) or parts thereof, but it would involve severability and a rewriting of the Articles to create something not intended by Parliament.

2. The basic structure doctrine cannot be the basis of striking down an ordinary statute. To apply the basic structure doctrine directly to legislations and executive actions would amount to rewriting the balance of power in the Constitution and surrender it to a vague and wandering 'jurisdiction' unsuited for that purpose. In the Indira Gandhi's case (1975), the amendments to the R.P.Act, 1951 were located in the 9th Schedule and were thus immunized. This must not be modified in the light of Coelho (2007).

3. Enabling clauses in Articles 243D and 243T are by themselves not invalid as violations of the basic structure (on the nagraj-Coelho principle).

4. 73d and 74th Amendments do not destroy the identity, and may indeed fulfil the identity test, evolved in Nagaraj.

5. Potential width of a provision to interfere with the basic structure will not be a reason for assuming a violation of the basic structure.

6. 50% cap on quota is taken from education and civil service jurisprudence and cannot be applied blindly to election law.

7.Special empowerment in legislative and Panchayat bodies is very much a part of the principles of democracy and equality.

8. Affirmative action is a part of and not an exception to equality.

9. This case deals with grass root democracy so as to empower the discriminated against, disadvantaged and disemowered at the very level where such empowerment at Panchayat level is necessary.

10. The meaning of backward clas in Article 243D(6) and 15(4) is the same, with the emphasis on social backwardness.

Another Review of "Reserved"

This morning's Hindu published a somewhat belated review of Rajeev Dhavan's controversial book, Reserved, by N.R. Madhava Menon. If you follow this blog regularly, you may recall our own Venkatesan's review of the book, which provoked a rather unusual set of responses from the author.

Menon calls Reserved an unusual book and hints that he disagrees with Dhavan's controversial conclusion that parliament acted irresponsibly by rapidly enacting five constitutional amendments to overcome the Supreme Court' decisions on reservations. But Menon seems somewhat afraid to take on Dhavan directly. He suggests that the readers must decide whether the author is correct. That sounds like a cop out to me. Don't readers always have the prerogative to assess the merit of a book? What does Menon really think about the book? He hesitates to say. He does, however, make an important point that Dhavan's objectivity in criticising the Supreme Court's judgment in the Thakur Case is affected by Dhavan's appearance as counsel in the matter.

Monday, November 24, 2008

An Unnecessary Amendment

The recent spate of terrorist attacks across the country has led to a demand for creation of a national agency to investigate acts of terrorism. The UPA government has cited the Indian Constitution as the only obstacle for the creation of such a national agency. The government asserts that since the entries “police” and “public order” are in the State List of the Indian Constitution, the Centre cannot create a national agency to deal with acts of terror without amending the Constitution. Even the Leader of the Opposition L.K. Advani agrees. In his autobiography, My Country, My Life, he asserts that we must liberate ourselves from the “law and order” mindset and only a constitutional amendment would allow the centre to deal with federal crimes like terrorism. This approach underestimates the constitutional powers given to the Union Government. Although our Constitution is a federal in structure, it has a strong unitary bias in favour of the Centre. There are two distinct constitutional sources of power which would enable the Centre to create a national agency to deal with terrorism.

First, although the Indian Constitution has created a list in the Seventh Schedule which can be legislated exclusively by the state government, it also confers certain “superior legislative powers” on Parliament to make inroads into the exclusive domain of the state government. One such “superior legislative power” arises in the context of an international treaty or resolution. Article 253 enables Parliament to make a law for the whole or any part of India to implement “any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body”, even if the subject matter of the law forms part of the State List. The Government of India has entered into numerous multilateral and regional treaties on terrorism and was a party to several UN resolutions and decisions taken at international conferences condemning terrorism and resolving itself along with other countries to punish acts of terror. Pursuant to these treaties and resolutions, Parliament is entitled to pass a law punishing acts of terror and creating a national agency to deal with acts of terror, even though it intrudes into the State List. A Constitution Bench of Supreme Court way back in 1969 in Maganbhai v. Union of India has categorically ruled that a parliamentary law pursuant to an international treaty cannot be challenged even though it intrudes into the exclusive legislative domain of the states.

Second, our Constitution was drafted on the assumption that law and order would be handled by the state and external defence would be handled by the Union. But inter-state and inter-country crimes do not fit into this neat bifurcation since the place where the criminal plan is hatched, prepared, financed and executed do not fall within one state and even within one country. This is a challenge for the investigating authorities since the state legislatures are constitutionally precluded from passing a law which would be effective beyond the state boundaries. But Parliament suffers from no such impediment. A law passed by Parliament cannot be challenged even if it operates outside the country. (Article 245) Therefore, inter-state crimes would not and cannot fall within exclusive legislative power of the state. Since there is no other entry in the Seventh Schedule in the Constitution, it would necessarily come within the ambit of the residuary power. Unlike the American Constitution, the residuary power to frame laws with respect to matters not enumerated in the Seventh Schedule in India has been assigned to the Centre instead of the states. (Article 248) The Parliament can certainly invoke this residuary power to create a federal agency to investigate and prosecute inter-state crimes like terrorist acts.

The Constitution is certainly not an obstacle to deal with terrorism. And on the contrary, it makes a categorical declaration in Article 355 that it shall be the “duty of the Union to protect every State against external aggression and internal disturbance”. Despite such explicit constitutional power conferred on the Centre, the Centre still cites the Constitution as an excuse to deal with terrorism. It is no small irony that the UPA government does not feel any constitutional constraint when it comes to invoking Article 356, but suddenly develops a respect for the federal character when it comes to dealing with terrorism. Constitutional modesty is certainly not a desirable virtue when the security of the country is at peril.

Courting Social Justice: Excerpts from a new book from Cambridge

This new book, edited by Varun Gauri and Daniel M.Brinks is to be published by Cambridge University Press shortly. The contents indicate that India is among the five countries (others being South Africa, Brazil, Nigeria and Indonesia)being dealt with by the authors. The India chapter has been coauthored by Shailashri Shankar and Pratab Bhanu Mehta. This excerpt found in the Cambridge University Press website offers a glimpse of the scope of the book.

Saturday, November 22, 2008

On torture

It is not very often that the BJP raises the issue of torture (this is not to say that other political parties are particularly vocal on it either). Advani's statements on the alleged torture of Pragya Thakur should therefore be seen as an opportunity to engage the Right on the issue more broadly and hope that at least on this basic issue we can develop a bipartisan consensus. It is with this hope that I wrote this piece in today's Indian Express. Neelabh Mishra makes a rather similar argument in today's issue of the Outlook magazine, although in the broader context of police reforms.

The 2008 Report of the Asian Centre for Human Rights on Torture mentioned in my article is available here. Although I did not mention it in my article for want of space, the Report also examines the role of the NHRC in dealing with torture and concludes that its current powers make it inadequate for the purpose.

Venkatesan helpfully drew my attention to the National Project on Preventing Torture in India, and a Frontline story on a national tribunal on torture held in New Delhi recently.

Thursday, November 20, 2008

Constitutional Right to Nature

Check this out. Equador is perhaps the first country in the world to extend a constitutional right to all of nature. The history of the movement leading up to this can be read in this Guardian article. As this editorial says, the implications of this move are likely to be watched closely. A flippant critique of this move can be read here.

Wednesday, November 19, 2008

Association for Democratic Reforms & Election Watch

The Association for Democratic Reforms, whose PIL seeking filing of IT returns by political parties was rejected by the Supreme Court last week, has been raising pertinent issues concerning our democracy, and the conduct of elections from time to time. Its major achievement was the recognition of the right to information about the background of candidates in 2002 through a PIL in Delhi High Court, which later gained approval in the Supreme Court. Its latest petition, therefore, must be understood as a continuation of its campaign for electoral and political reform, and not as a means to get cheap publicity, as unfortunately concluded by the Supreme Court Bench. The PIL petition seeking Court's intervention to make political parties pay their income-tax can be read here.

The ADR has also brought out its latest report on the Chhattisgarh assembly elections, focussing on the background of candidates, which will be of interest to us.

Tuesday, November 18, 2008

Judicial Activism, PILs and all that jazz

As a follow up from Madhav's post, I think that terms like 'judicial activism' can hide more than they reveal. One needs to be careful about the precise judicial role where the court is being accused of being activist. PIL is strictly a standing issue, and the only relevant question at this stage is who should be allowed to bring in an action. The various possibilities, using Cane, include (a) direct and sufficient interest standing, (b) associational standing (where a group of persons having direct and sufficient interest is represented by an organisation or person), and (c) public interest standing (where the petitioner represents the public interst).

All three categories involve different issues. It is crucial in (b) that the representation is authorised in some form by those represented - Cane calls for a 'democratic stake' by those represented in the association. The simple idea is that the association needs to have some basis on which it claims to represent my interest. This category is similar to class-action suits.

In (c), on the other hand, it is important that if public interest standing is to be allowed at all, the petitioner must do a good job of it. It is much better to not allow an inexpert (if well-intentioned) petitioner bringing in a badly argued case which creates bad precedent since it does more harm than good to the public interest. Of course the boundaries between (b) and (c) are fuzzy and there will be overlap. Was the Narmada Bachao Andolan case about associational standing or public interest standing? Rules need to be evolved for these hybrid cases, but it does not detract from the basic distinction.

Justiceability, on the other hand, is a concept distinct from standing, and should arguably apply equally to whoever brings the action. Here one has to consider whether there is any area of law which is completely inaccessible to the judiciary. I personally believe that once a violation of fundamental rights has been made out, the Court has no option under Article 32 but to consider it as justiceable - although it can accord limited deference to the Executive or the Legislature, depending on the subject matter. A good example of a case which was (wrongly) thrown out at entry stage on justiceability grounds even though it involved important fundamental rights issues was Ahmedabad Women Action Group (involving constitutional challenge to personal laws). Hunt argues against the spatial concept inherent in any talk of 'areas of deference' and says that no case can be a priori judged to be non-justiceable if it prima facie involves fundamental rights violation. The degree of deference due is a judicial decision that needs to be decided on the facts of the case, and not at the entry stage itself. Deference is obviously connected with the issue of the appropriate standard of review.

Justiceability should also be distinguished from a (legitimate) screening method used at the entry stage - whether a prima facie case has been made out (or, in other words, whether the petitioner has any chance of success) is a distinct and legitimate resource management consideration.

Finally, activism in the context of remedies is also an entirely separate issue, and one has to consider the question in the context of Article 142 ('complete justice' requirement).

When talking about judicial activism, we need to be clear in what context we are discussing it. A Court may be 'activist' on standing and remedies, which being retrogressive on standard of review.

(Comments, as always, are welcome, from stray and astray readers alike)

Article 377: Philosophy Behind the Law

In an article in the current issue of the Economic & Political Weekly, Animesh Sharma explores the jurisprudential basis of Article 377 of the Indian Penal Code, the constitutional validity of which is currently being challenged before the Delhi High Court. While Mr. Sharma's article is a commentary piece and thus short, it serves to provide a useful understanding of the philosophical debates relevant to the provision. In particular, it discusses the noteworthy debate between HLA Hart and Lord Devlin, and relevant US cases. The debate between Hart and Devlin, and Ronald Dworkin's critique of Devlin's position, are amongst the most important reference points for debates on this issue. Surprisingly, while the case before the Delhi High Court has received much attention (even on this blog), the Hart-Devlin debate has not really found its way into the discussions currently being witnessed in India.

Reforming Public Interest Litigation

Recent months have seen substantial debate on the Supreme Court's emerging attitude towards reforming public interest litigation (PIL), especially in light of Justice Katju's controversial remarks. In an article in today's Indian Express, I reflect upon this development in light of the Supreme Court's rejection of a PIL petition on Friday, requesting it to order political parties to file tax returns. In particular, I argue that while the stress upon monetary penalties for frivolous PILs is a good thing, true reformation can only come through doctrinal developments that make the distinction between concerns of frivolous petition and concerns of appropriate representation. Certainly further distinctions may need to be made, which I have been unable to deal with in my article. For instance, Justice Katju clearly treated Common Cause as a frivolous PIL petition and it was thrown out, as I mention, because the court said that the sought relief was beyond its authority. But Justice Sema's judgment makes for an interesting read, and perhaps it could be worth exploring distinctions in when PILs are to be rejected within the broad categories of those based on the subject-matter of the suit (broad umbrella - frivolous) and those based on the petitioner (broad umbrella - appropriate representation). Look forward to comments.

Sunday, November 16, 2008

Significance of Supreme Court's architecture

Guest post:

By Gopal Sankaranarayanan

Apropos the post on the symbolism attached to our national buildings I got thinking about the looming edifice which feeds so much of what is debated on this blog. The architecture of our Supreme Court is one which lends itself not only to the majesty of its stature, but also to the solemnity of its task.

In what is probably one-of-its kind, the buildings that comprise the Supreme Court were designed in such a manner that when viewed from the air, it would resemble the scales of justice. The picture here is such an aerial shot, courtesy my mild dabblings with Wikimapia.

A glance at the portions with the white roofs will indeed show how such an image can be conceived. The two limbs terminating in hooks on either side suspend the pans which are separated from the limbs by a row of trees. Connecting the two limbs is a central beam, at the heart of which is the massive 90 foot dome – the most identifiable feature of the entire structure. Below the dome is the Chief Justice’s court, flanked on either side by Court Halls 2 to 5, which are at the present moment manned by Justices Agarwal, Pasayat, Sinha and Kapadia in that order. Behind these Courts is the Judges’ corridor, their chambers, a dining hall and committee rooms, all of which are hidden from view, much like they are in the High Courts. Thanks however to the Annual Report of the Supreme Court 2006-2007, glimpses of these hallowed precincts are now with us.

The limb on the left houses the registry and administrative offices, while the one on the right contains libraries and the chambers of the Law officers. The ‘pans’, more commonly referred to as the Old Chamber Blocks, have over a hundred offices, primarily for the Advocates-on-Record, most of which are severely cramped, which has led to the recent construction of more such chambers across the road, and the takeover of land from Pragati Maidan.

The Supreme Court was not always in these buildings, however. From 1950, they took over where the Federal Court left off, and moved into the majestic Hall of Princes’ at Parliament. In 1958, when the present building was completed, the shift was made. I have approached the President of the Supreme Court Bar Association and other office bearers with the proposal of commemorating 50 years of this venerable structure in some way, but their reception of it could not be called enthusiastic.

The Unites States Supreme Court shifted into its present residence only as late as October 1935 after Cass Gilbert was handpicked by Chief Justice Taft to execute something overwhelming. An interesting article on that building is here.


1. Rajeev Dhavan's review of Shanti Bhushan's book
2. Supreme Court to frame guidelines on encounter deaths.
3. How general candidates made it to IITs scoring less than 10 marks in physics in Joint Entrance Examinations.
4.Eighth Report of Second Administrative Reforms Commission on Combatting Terrorism.
5.Government stalls Judges' promotions.
6.Discussion on Walter Crocker's out-of-print contemporary book on Jawaharlal Nehru which has been republished by Random.

Saturday, November 15, 2008

PIL jurisprudence: Change in Supreme Court's approach

If an instance is required to illustrate the shift in Supreme Court's PIL jurisprudence between 1990s and now, it is this. The petitioner, the Association for Democratic Reforms, wanted to ensure proper compliance with the Court's own direction to political parties to file income tax returns in 1996. But the Court declined to interfere, calling the petition ill-timed because of the ensuing assembly elections. Surely, the petitioner's prayer could have been addressed without restricting the parties' ongoing election campaign.

Obama's success: Lessons for India

Many analysts have been quick to compare Obama's successful strategy in the U.S.Presidential elections with the chances of aspiring Indian politicians from the Minorities, especially Mayawati, to make it to the office of the Prime Minister after the next general elections. However, most of them who were tempted to compare Obama with Mayawati or any aspiring leader from minorities/disempowered groups missed this fact: what was significant in Obama's success was his campaign strategy, which could have been successfully used by a leader belonging to a Majority/empowered community as well. But none bothered to explain the essence of this strategy except, according to me, Amartya Sen, in this Time cover story. . In a very short piece, Sen managed to succinctly describe this essence in Obama's "willingness to reason". He said: "He won his presidency not as a black American but as a reasoning American who happens to be black." Using this as an essence of success, one could say that the Indian and American electorates are not entirely dissimilar. Every general election result in India could be explained in terms of the successful party's "willingness to reason" which so convinced the electorate about the party's credibility. If Mayawati or any other politician demonstrates this willingness to reason the major campaign themes,(which could mean defending the indefensible, so to say), she or he could be said to have learnt the lessons from Obama's campaign.

Do we need a law tougher than POTA?

Political parties are already on the election mode, and have begun discussions on what could possibly go into their manifestoes. This report says the Congress party has sought the views of the senior advocate K.T.S.Tulsi on how to tackle terrorism. Tulsi, reportedly, has advised the party that we needed a toughter law than POTA. While it will take some time for the details of Tulsi's PPP to Congress bosses make their way to the media, this article written by Tulsi on TADA several years ago, may provide some insights into how he might have persuaded the party to opt for a tough anti-terror law.

Friday, November 14, 2008

Halsbury's Law on Judicial Reforms

Halsbury's Law's November 2009 issue is on Judicial Reforms. Chief Justice of the Madras High Court, Justice A.K.Ganguly provides the historical perspective.. Prashant Bhushan, in his article, deplores the 'anti-poor' character of the Judiciary. Senior Advocate Dr. Shyamlha Pappu traces the current process of appointment of Judges to Higher Judiciary.

Architecture and the majesty of a democratic state

I had never believed that the legitimacy of our governments in fact stems from the symbols of the state, that is, the actual buildings which house the powers-that-be till I read this interesting article. Is it possible to imagine the power of our Supreme Court without unconsciously associating it with the building which stands at Tilak Marg? No wonder, the Supreme Court is reluctant to concede the demand to set up another Bench of the Court elsewhere in the country, even though the Constitution provides for it under Article 130, and the Government is in its favour.

Wednesday, November 12, 2008

MHA's advice to the President on GUJCOCA

Today's Indian Express carries a front page story suggesting that MHA has advised President not to give assent to the Gujarat Control of Organised Crime Act, because it is as harsh as POTA, which has been repealed in 2004. The story is intriguing because there are several state legislations pending for President's assent: as on 30.9.2008, there are 37 Bills pending for President's assent, after passage in the state assembly. Besides, there are nearly 50 State Bills,and 3 ordinances waiting for Centre's nod before introduction in the state assembly. One of the Bills, passed by the state assembly, is pending for assent since 1995. Obviously, there is no deadline for the President to either give assent or return a Bill for reconsideration. Check the list of such Bills here. The Centre cleared as many as seven Bills in September 2008, the oldest among them having been enacted in 2005. Therefore, to suggest that the Centre is under some kind of pressure to give assent or return the GUJCOCA to the state assembly for reconsideration is, on the face of it, unconvincing.

On the other hand, will not the MHA be correct if it advises the President that the decision on GUJCOCA be deferred because the Supreme Court is seized of a related matter involving MCOCA, and therefore, sub judice? The Express story is incorrect insofar as it notes that the Supreme Court has upheld the validity of MCOCA in the Bharat Shah judgment. The Bharat Shah case involved the limited issue of whether the State was competent to legislate on interception of communications, as Parliament alone is competent to legislate under the Telegraph Act. The Court applied the doctrine of pith and substance and permitted this overlapping. But a more substantial challenge to MCOCA has been heard by the Supreme Court. The arguments concluded on November 10, and judgment has been reserved. See my recent post here which also links to the latest order through an update.(Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra)
UPDATE:: Gopal Sankaranarayanan's article may be read here.

Quota for forward castes

The ongoing hearing in Dr.K.Krishna Murthy case at the Supreme Court yesterday brought to the fore Karnataka Government's defence of quota for forward castes. This story gives a gist of the State Government's defence, as well as the background.

Lawyers' absenteeism in courts

In a part-hilarious piece, M.J.Antony pleads for safeguards in defence of the litigant in the context of rampant absenteeism by the lawyers. He says: "The remedy in the Civil Procedure Code and the relief granted by the Supreme Court do not totally tackle the problem of absenteeism. Lawyers know very well that the courts would not dismiss the case on merits — but only for default — and therefore are emboldened to absent themselves. The court may make some harsh observations against the counsel involved but since it has to do justice and hear the litigant in any case, the lawyers can act with impunity. The worst that can happen is an order of compensation to the opposite party for travelling to the court in vain.

"The bar councils disregard this problem faced by the litigants, though it is a matter of professional indiscipline. When a lawyer reported sick in one Delhi court last week and was found on his legs in another, it was the court which penalised him. The councils are equivocal even when the bar goes on illegal strikes or prohibits the members from defending persons accused of grave charges.

Perhaps the only speedy remedy available for a disgruntled litigant is to approach a consumer forum alleging deficiency in service and unfair trade practice. But then it would be as difficult to find a lawyer to argue against another, as it would be to find a doctor to be witness against another in a medical negligence case."

Tuesday, November 11, 2008

Government defends exclusion of creamy layer

At the ongoing hearing of Dr.K.Krishna Murthy vs.Union of India at the Supreme Court this morning, the expected happened. While concluding his submission before the Constitution Bench, the ASG, Gopal Subramanium conceded that as a Constitutional lawyer, he would favour consistency in the definition of backward classes, whether it is for the purpose of Articles 14, 15 and 16 or for Part IX of the constitution, the subject of the current litigation. As for as the constituents of backward classes are concerned, the logic applicable to Articles 14,15 and 16 must also apply to Parts IX and IX A of the Constitution, he said. This was in response to Justice Raveendran's query whether the Government thinks that creamy layer must be excluded from backward classes for the purpose of reservation in Panchayats and municipalities.

While claiming that the setting is different under Articles 14, 15 and 16 (because they pertain to access to education and employment) as compared to Part IX and IXA (which deal with political participation), he conceded that the logic is the same. "The moment a person is considered as a creamy layer, he or she steps out of the definition of the BC", he accepted citing Ashoka Kumar Thakur and Indra Sawhney judgments of the Court.

Courting Destiny

Shanti Bhushan's memoirs, Courting Destiny is being released in New Delhi today at Gulmohar, India Habitat Centre at 6.30 p.m. Ram Jethmalani will unwrap a copy of the book in the presence of Justice J.S.Verma and Shanti Bhushan. Speakers will include Jethmalani, Justice Verma and senior advocate, Andhyarujina. [Price Rs.650. Penguin.]

ABOUT THE BOOK: (Courtesy: Penguin India website)

"Born in 1925, Shanti Bhushan was witness to the formative years of the Indian republic. Courting Destiny traces the remarkable story of his life—the family’s origins in the town of Bijnor in the United Provinces, the experience of growing up in a joint family in Allahabad, initial encounters with the law when the Constitution of India was being framed, the distinguished career as a lawyer and law minister, culminating in the campaign for judicial accountability.

These memoirs provide a participant’s account of some of the most interesting and seminal cases that laid the foundations of India’s constitutional history. They include the Keshav Singh case of 1964 which led to the first standoff between the executive and the judiciary; Indira Gandhi’s election case which unseated her as prime minister, leading to the imposition of the Emergency; the habeas corpus case where the Supreme Court declared that during an emergency there is no right to life or liberty and hence no recourse against illegal detention; and the parliament attack case in which the Supreme Court, while acquitting Shaukat Guru of all charges of conspiracy, convicted him on a charge for which he was never accused. Together, they offer a broad perspective of the evolution of Indian law and the interpretation of the Constitution.

Courting Destiny affords us a glimpse of the many fundamental and far-reaching political and constitutional changes that took place in the decades following independence. The descriptions of Shanti Bhushan’s brief involvement in party politics and his time as law minister in the post-Emergency Janata government make for a fascinating insider’s account of an important phase of the nation’s life.

In this narration of the author’s life and work, the personal, the professional and the public unfold seamlessly, never at the cost of one or the other. Written in a direct and engaging style, laced with gentle humour, Courting Destiny will appeal to all those interested in India’s legal, constitutional and political history. At a time when both the Bar and the Bench are under a cloud, the illustrious sixty-year career of Shanti Bhushan will be a source of inspiration for young advocates."

Supreme Court's arrears: A new perspective


[I am pleased to introduce Gopal Sankaranarayanan who is an advocate of the Supreme Court. His particular areas of interest are Constitutional law and Criminology. He is a firm believer in the power of the judiciary and in PIL, currently involved inter alia in challenges to the implementation of the reservation policy, the insertion of 'Socialist' in the Preamble and the abolition of the Right to Property - VV]

THE concern about arrears in Courts has been a longstanding one, and to which many books, several Reports of the Law Commission and a dozen annual symposia are devoted. However, there is a recent phenomenon, at least as far as the Supreme Court is concerned, which seems to be doing its bit to choke the windpipe even more – the listing of Special Leave Petitions on Non-Miscellaneous Days (NMDs).

The Supreme Court’s practise (for those out of the loop) is to have Miscellaneous Matters (SLP admissions, Interlocutory Applications and virtually every other Petition being heard for the first time) listed on the first and last day of a work week, which are usually Mondays and Fridays. On the 3 days in between (the NMDs), it undertakes Final Hearings, where all matters that have been admitted on a Monday or Friday are taken up for hearing. So far, so good. With at least 3 full days devoted to finally disposing of matters which had been admitted previously, many of them involving important questions of law or being part of an extended batch, there was some hope of the backlog being controlled.

However, over the course of the last few years, there has been a disconcerting tendency at the stage of admission for seasoned lawyers to press the Court to take up their matters on an NMD because they claim the case involves some element of urgency, the resolution of a brief but crucial point of law or that it is of grave public importance. One would imagine that such arguments would hold true for nearly half of all the matters that are brought before the Court, but in any case, the last several months have borne witness to the NMD lists being clogged by recent petitions which have wrested their way onto the board. While this may not seem to mean much at first blush, the consequences are grave.

Consider the fact that for over a year and a half, the Chief Justice’s Bench has not managed to make its way through its NMD list to get to the Items on his Final Hearing List, which include such notables:

103: S.V.Joshi v. State of Karnataka
Voice Consumer Care Council v. State of Tamil Nadu
[both OBC reservation matters from 1994 concerning the 9th Schedule]

104: I.R.Coelho v. State of Tamil Nadu
[concerning the Gudalur Janmam Estates, this was the lead matter in the 9th Schedule batch by virtue of the year of its filing – 1976!]

116: M.Nagaraj v. Union of India
[concerning reservations in services, this is a batch of nearly a 100 petitions!]

There are several other petitions on this list, involving far-reaching questions of Land Revenue, the interpretation of Article 31-C and the Implementation of the Justice Srikrishna Commission Report. But they are all hanging air, as the invading Miscellaneous matters are cleared.

Unfortunately, this is a malady blighting virtually every courtroom, as a result of which barely a handful of the really far-reaching matters are being heard. There are only one of two possible solutions in my view: The Court should either adopt a collectively obdurate attitude towards listing any admission matters on a NMD, or designate one or two specific courtrooms to handle all the matters that are directed to be so heard. Many judges have bemoaned this growing trend born of the judiciary’s own unnecessary munificence, and it is high time that it were nipped in the bud by its very creators.

Monday, November 10, 2008

Vicarious liability for political violence

Tarunabh, while analysing the provisions of Maharashtra ordinance, has raised the issue of forcing the perpetrators of political violence pay for the losses suffered by their victims. But I am not at all sanguine about the effectiveness of imposing fines on the leadership of the parties which sponsor such violence. Following the Kerala High Court's ban on the holding of bandhs, and the Supreme Court's endorsement of the judgment, fines have been imposed on political parties sponsoring bandhs, and the parties had indeed paid such fines but it has not prevented the parties from using bandhs or strikes as a political weapon. We already have the Prevention of Damage to Public Property Act, 1984 which extends to the whole of India except J&K, and had come into force on January 28, 1984. Sections 3 and 4 of this Act impose imprisonment as well as fine on whoever commits mischief by doing any act in respect of any public property. 'Mischief' in this Act is defined according to the definition in S.425 IPC. The ingredients of Sections 425 and 426 IPC are broad enough to cover the liability of sponsors of violence as it includes intention or knowledge of likelihood to cause wrongful loss or damage to the public or to any person. The question is how many have indeed been punished under these provisions for political violence, causing damage to public property. The Thomas Committee was set up precisely to make this Act effective, but its tarty progress reveals the problems it faces in collecting the requisite data from the States.
Update: As the author of the comment shows, the IPC sections provide for direct liability of the sponsors of violence, not vicarious. Making the leaders vicariously liable (as Tarunabh has suggested) may not be an effective deterrent.

Cut-Off Marks in School Admissions: Was Judicial Intervention Warranted?

I was intrigued by the recent SC decision in Principal, Kendriya Vidyalaya and Ors. v. Saurabh Chaudhary and Ors. where the court held that as a general rule, students from the same school cannot be subjected to readmission for Class XI. The Hindu news report regarding this item is here.

Kendriya Vidyalayas (KV) are run by the Kendriya Vidyalaya Sanghatan, a registered society administered by the HRD ministry. Their admission guidelines prescribe fresh admission to class XI where cut-off marks are set for students of the same school for each of the streams offered – science, humanities and commerce. The petitioner was an aggrieved student who failed to meet the cut-off marks for admission to the science stream, the only one taught at the school in question at Tambaram, TN. He was therefore denied entry there but instead offered admission in a different stream at a different KV school in Chennai where other options are available. The current appeal was against the judgment of the Madras High Court which ruled in the boy’s favor directing the school to admit him.

J.Aftab Alam’s opinion in this case is based almost entirely on a previous judgment in The Principal, Cambridge and Anr. v. Ms.Payal Gupta and Ors. where the court held that in accordance with the rules framed under the Delhi School Education Act, 1973, private unaided schools had no authority to exclude their own Class X students from entry into Class XI on the basis of school-determined cut-off marks. The court recognized that that law does not apply in the context of this case but cited various passages from that ruling in support of its contention that the principle had wider applicability qua schools in general.

The Judgment in Payal Gupta:

To understand the context, a short summary of the facts and reasoning in Payal Gupta is briefly presented first. The question there was similar except that a private unaided school was involved. There too, students were denied admission owing to a cut-off prescribed by the school in the form of a circular. The aggrieved students first approached the government and secured a letter from the Deputy Education Officer asking the school to admit them notwithstanding any institution-prescribed rules. The school in question rejected this directive arguing that the Directorate of Education was not authorized to issue it under the 1973 Act following which the students took the matter to court.

Central to the question in Payal Gupta was the power of the principals of private unaided schools to regulate their admissions. Rule 145(1) allowed heads of private unaided schools to ‘regulate admissions…to any class either on the basis of admission test or on the basis of result in a particular class or school’. Rule 145(2) stated that subject to the provisions of 145(1), other provisions of the chapter (which included particular regulations of admissions to aided schools and the authority of the Directorate of Education to issue directives to them) , so far as may be, apply to admission to a recognized unaided school as they apply to an aided school.

Despite the clear wording of 145(2) that its application was subject to 145(1), the court took the opposite (and erroneous in my view) position that 145(2) applied generally (i.e. all provisions of aided schools that could be applied to unaided ones as well) while the power of private unaided school heads under 145(1) only applied to matters not already covered under the chapter, i.e. as specified by 145(2) (para 6).This is effectively tantamount to rewriting the rules with the prefatory condition clause transposed from 145(2) to 145(1).

It followed, as per this dubious and unduly restrictive interpretation, that the school, in order to win, had to demonstrate that its admission practice was perfectly common and conformed to the regulations that applied to aided schools (i.e. only procedures regulated under that chapter were deemed permissible). In rejecting the school’s case, the court cited two plausible reasons why it could not accept that entry into each successive higher class in the same school involved readmission: (1) As per admission procedures of aided schools, admissions could only be conducted in the manner prescribed with forms duly signed by the parent/guardian being turned in to the school. That being the case, it stood to reason that if admissions were indeed being held year after year, the school ought to have been able to produce these submitted applications as evidence of existence of such a procedure but since no such material was placed, a contrary inference could be drawn. (2) This was supported by common knowledge that following admission to a school, no fresh application is sought for promotion from class to class until following the last exam when the student departs the school. Taken together, it concluded, ‘in these facts and circumstances, it is difficult to accept that after a student passes class X of a public examination, his admission to the next higher class, i.e. class XI would be a fresh or readmission’ (para 6). Failing that, the school had to show that its own distinct admission practice was required to be followed under either 145(1) or some other provision. This it could not do (the practice of readmitting students to class XI was relatively new even in 1995 when the case was decided, not widely prevalent as the court itself opined and was obviously not contemplated by whoever wrote the law and rules over twenty years earlier) and not surprisingly, the attempt failed (para 8). Lastly, consistent with the same approach, the court held that if aided schools were barred from denying readmission to the same class for failed students under rule 138, a fortiori, unaided schools could not deny the same for those who passed but scored less than the cut-off marks even if it was to a higher class (para 7).

A critique of Saurabh Chaudhary:

Payal Gupta remains binding precedent notwithstanding this fundamental error. The question in the present Saurabh Chaudhary case was whether this holding applied also to KVs which do not come under the ambit of this law. That fact alone was sufficient ground to distinguish this case and uphold the school’s appeal. Instead, the court compounded the flaw by answering in the affirmative.

Firstly, it said that accepting the contention of the school would lead to an anomalous situation in Delhi where Central schools such as the KVs would be free to refuse admission to their own students but private unaided schools would be denied the privilege (para 9). Given that the school in the present case is not situated in Delhi, why was this even a consideration? If a consequence of its outcome was going to be that different schools in Delhi would end up having different rules applying to them, the court could consider the matter (either statutory or constitutional) if and when it came up. Alternatively, it could have indicated clearly that its decision being not based on the same law, the question of its applicability to Central schools in Delhi was being left open for another day.

Next, it said that though the Act in question in Payal Gupta did not apply in this case, ‘certain findings and observations in the decision are clearly of general application’ (para 10). Here it cited the ‘common knowledge’ observation as well as the issue of parity the court addressed under rule 138 of that case (both mentioned above). The latter has no relevance to the present case as the court did not point out any like provision providing protection to failed candidates under the KV system. As for the former, Payal Gupta concerned a particular private unaided school trying to implement a different policy contrary to the system that aided schools followed as per regulations whereas here, an entire government run school system was trying to implement this admission policy. When a large number of schools are attempting to bring about a change, what is ‘common knowledge’ is itself thrown into question (of course the court can prevent it and then claim that what it has inferred from ‘common knowledge’ is still intact!). Thirdly, the Sanghatan guidelines here, as the judgment points out, specifically required fresh admissions to be made to class XI based on the Board results of class X which was again different from that case where the regulations merely referred to admissions in general leaving it to the court to ascertain what constituted admissions as distinct from readmissions to a higher class in the same school.

The court then reproduced the CBSE bye-laws concerning student admission to class XI (para 11) which neither support nor refute its view – they simply point out that only those who have passed class X are eligible for admission to class XI (how surprising is that?!). Note however that this is a minimum criterion for eligibility, not a maximum one.

It further argued that the Sanghatan guidelines having no statutory basis, they are not very different from the circular issued by the court in Payal Gupta (para 13). Wrong again. Absence of a statutory basis is precisely why they are indeed different. In Payal Gupta, the circular was held to be in violation of the 1973 Act whereas, bereft of a comparable statute, no conceivable ground was made out for challenging vires of the guidelines here.

Based on this erroneous line of reasoning, the court decided that because other streams were not being offered by the school, it had no choice but to accept the student into the science stream. The admission offer to a different stream at another school was rejected as irrelevant because such an arrangement may not be feasible in smaller towns where there may not be more than one school and moreover, it would entail a disruption in the familiarity of surroundings for the student. These are highly debatable value judgments. People relocate all the time in part owing to consideration for their children’s education. Even in the present day, many villages have no high school or college nearby requiring them to make arrangements for their children to study in distant places. Surely the hardship that traveling out of town to attend a different KV entails cannot be said to be undue or excessive in light of what a large number of families and children migrating from rural areas to attend lesser known urban schools routinely endure. And if disruption of familiarity is a reason for keeping a student, seriously, no one should ever be required to graduate within any time frame! After all, going from school to school or school to college or even from college to a workplace all involve major changes in our routine and a compulsion to adapt to new surroundings and getting to know new people whether we are so inclined or not.

At no stage does the court appear to have given any thought to whether schools ought not to be allowed the discretion to lay down their own admission standards and procedures without unwarranted interference from outside. Nor did it stop to consider whether it was in the student’s own interest to be admitted to the science stream without his meeting minimum requirements. There is no doubt a reasonable basis for laying down cut-off marks and conducting fresh admissions at the class XI stage – fewer subjects have to be studied in greater detail, the competition encountered in the various streams is not alike and aptitude in certain subjects is more material to some streams than to others. If the guidelines incorporating all these factors have been applied to judge that an individual student is better suited for a non-science stream, does the court really have superior clairvoyant abilities to proclaim otherwise? If he fails to succeed later on to the detriment of both the school and his own self, is the court willing to take responsibility for it?

One final point. The notion that schools cannot require their own students to reapply is not inscribed in stone for the ages. Nor are the standards applied by the education community immutable. Change does not always happen through a top-down process initiated by legislation and court orders but evolves bottom-up with contemporary standards emerging as schools make changes and evolve new methods one at a time (or one system at a time as in this case where the KV Sanghatan makes periodic changes to its guidelines) through a process of trial and error. Educationists deliberate upon these diverse approaches and models in revising their own perceptions of what is ideal and suitable. To decree that admission procedures be frozen to conform to what was considered ‘common knowledge’ in 1995 is to stifle this natural process, curb innovation and enforce dogma solely on account of tradition. Not only is it anomalous for a court that considers itself progressive to be trying to retain the old ways simply because that is the way it has always been done but its penchant for enforcing its own arbitrary notions of propriety in the name of uniformity above and beyond what state legislatures have locally mandated behooves ill for a free country. Perhaps no other area has suffered more from excessive judicial meddling as much as education. On a broader note, unless this tendency is reined in, it will gradually erode the gains that decentralization efforts and the democratic process have managed to make over the years.