Tuesday, March 31, 2009

Sanjay Dutt and Navjot Singh Sidhu: Flaws in Supreme Court's reasoning

Supreme Court's judgment in Sanjay Dutt's case, denying his plea for suspension of his conviction under the Arms Act is based on the subtle distinction which the Court tried to make between his case and that of Navjot Singh Sidhu. The Court suggested that in Sidhu's case, his conviction was suspended because he was a sitting Member of Parliament when he was convicted. He resigned, and sought election on moral grounds, even though he could have continued, filed an appeal within three months, and avoided disqualification under the S.8(4) of RPA. Secondly, the trial court had acquitted him, while the High Court had reversed the acquittal. These two factors are not present in Sanjay Dutt's case, so the Supreme court has suggested.

When I read the Navjot Singh Sidhu judgment of the Supreme Court, I was dismayed at the poor reasoning adopted by the Supreme court. I was even more dismayed to find that the Supreme Court relied on this very poor reasoning to set it apart from Sanjay Dutt's petition, though the Supreme Court might have been correct in refusing to suspend Sanjay Dutt's conviction on merits.

Let me explain some of the obvious flaws in the Sidhu judgment.

1. The Court: Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. The courts should exercise the power to stay conviction only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.

While this is a valid criterion, it cannot be said to make the Sidhu case unique. Sanjay Dutt too could have easily fulfilled this requirement.

2. The Court: It was not necessary for the appellant (Sidhu) to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. A person who resigns from the Parliament or the Assembly and seeks a re-election, if elected, will have greater moral authority to represent the constituency.

Read the above with what the Court said subsequently in the same judgment:

The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.

Inconsistency apart, if this is the yardstick, most convicted criminals in legislatures only need to resign from their seats,and seek reelection (which they are likely to win, considering their clout)in order for the Courts to suspend conviction.

3. Having considered the Sidhu's case on the ground that he sought reelection, the Court went on to say this, further heightening the inconsistency in its judgment:

We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is granted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called in

4.The Court was also making a judgment on the quality of the crime: a conviction for the offence of corruption is worse than one for any other offence. Read this:

When a conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here.

5. The Supreme Court gave relief to Sidhu also because he was not a Member of Parliament when he committed the offence, for which he was convicted; therefore, he could not have misused his position as an MP to commit the crime. But the Court overlooked the fact that he was then a celebrity, and being a celebrity in society carries with it certain amount of influence, normally denied to non-celebrities. Even if an accused does not happen to be a public servant or a celebrity at the time of commission of crime, how could it be a mitigating factor, when it comes to disqualification? The law does not envisage such a distinction between convicts.

It is surprising why the CBI's counsel did not seek a reconsideration of the Supreme Court's judgment in the Sidhu's case by a larger Bench, even though Sanjay Dutt's counsel relied on it to seek suspension of his conviction.

Monday, March 30, 2009

Shame of a Name and The Great House Hunt

This blog has discussed the issue of housing discrimination several times in previous posts (I, II, III and IV), so it may not be very interesting to go through the legal arguments once again (for those who want to catch up, I have summarised possible legal remedies for dealing with housing discrimination here). I just wanted to share two moving stories being furiously debated on Kafila - personal narratives by Zainab Bawa and Sohail Hashmi (on last count, Zainab's story had 44 comments which themselves make a very interesting read). Also interesting is Anjum Hasan's following account:

...what it means to be a Muslim who is not quite a Muslim. Bangalore, where I now live, is perhaps the most hospitable city in the country but trying to rent a house sometimes means dealing with landlords who wish to first get the matter of religion out of the way. Now wait a minute, I have wanted to say to the house-owner who asks me on the phone if I'm Muslim. I know he is drawing on a pre-existing mental picture. I want to answer him in the negative and hope he gets the implication, which is that not everyone with a Muslim name is ‘Muslim' . But if he misses my subtle point, I will only be encouraging him to continue discriminating against those who conform to the image in his prejudiced head. Better, then, to say – ‘Yes, I am' and try to get across the subtext – ‘And so what?' Which possibly means losing the house, which seems eminently unfair.

These narratives should remind us that behind our sanitised legalese are real people facing real consequences because of choices made by our legal system (for choosing not to act is also a choice). Sohail's anecdote suggests that housing discrimination against Muslims in Delhi is (a) not recent, i.e. not a product of recent ostensible linkages between Islam and terrorism, (b) systemic and widespread enough to dictate basic life choices regarding where to live and everything else that goes with it, and (c) solely based on the religion of the applicant (the use of intelligent and innovative pretexts notwithstanding). Sadly, all we have is anecdotal evidence. This is an issue crying out for statistical analysis so that we can realise the true extent of the problem and test the generality of these anecdotes.

Incidentally, readers may be interested to know that the 2009 election manifestoes of the Congress Party and the CPI(M) promise to establish an Equal Opportunity Commission by law, while the CPI manifesto promises to 'end discrimination in the matter of job recruitment and disbursement of various economic schemes.' (For a detailed discussion on the Equal Opportunity Commission and its potential implications for this discussion, see this article).

Sunday, March 29, 2009

Mystery novel by young lawyer

A NICE QUIET HOLIDAY by Aditya Sudarshan, Westland, Rs.250.

Aditya Sudarshan, a graduate of National Law School, Bangalore has recently published his debut mystery novel "A Nice Quiet Holiday". The book has opened to favourable reviews, see here. The plot summary as described in one such review is as follows:

"When Anant, [a law clerk] is invited to Bhairavgarh by his employer, the maverick New Delhi criminal court judge Justice Harish Shinde, the young law
clerk looks forward to a peaceful stay at the Judge's friend's home. It isn't to be. Only days after he arrives, the tranquil hill-town is transformed into a seething hotbed of hostility. The cause is a controversial report on AIDS authored by Mittals, fellow guests at the house of Shikhar Pant. Small town morality wrestles big city urbanity as the people of Bhairavgarh protest against the report's alleged obscenity. But within the house too, loyalties are divided. Matters come to a head when Pant's cousin - a famous writer and supporter of the Mittals - is discovered stabbed to death. But with the police chasing all the wrong leads it's up to the Judge to track down the murderer. Soon Anant finds himself legal counsel for the Mittals and an assistant sleuth to the Judge. His quiet holiday is going to be anything but."

Sudarshan's writing has been described as "simple, straightforward, unpretentious" even though the novel is "interspersed with legal terminologies" and compared with that of R.K. Narayanan and Arthur Conan Doyle. Sudarshan also received the H.M. Seervai Gold Medal for the "Best Essay in Constitutional Law" during his stint at NLS. Obviously, some people can combine good legal and fictional writing with ease. Keep it up Sudarshan!

The NUJS Law Review: another step towards reviving strong legal scholarship in India

The new National Law Schools have often – and justifiably – been criticized for their failure to develop a strong scholarly and research tradition and a corresponding body of scholarship on Indian law. The reasons for this failure are quite complicated, and are the subject of considerable debate. One measure of scholarly contributions is the existence of a quality journal. Two decades after the establishment of the first National Law School in Bangalore, there is no single journal within the country which can justifiably claim that it matches the heights reached by the Journal of the Indian Law Institute in its first two decades (even that esteemed journal has since been unable to consistently keep up with that level of quality in recent years).

The good news, however, is that most of the new schools now acknowledge this lacuna, and are taking steps to address it. One such measure is the renewed focus on student edited journals, and the determined efforts of their editorial boards to raise the profile of their publications by soliciting high-quality pieces from lawyers and academics within India and abroad. Simultaneously, the journals also provide a vehicle for well-researched pieces by current students, thereby paving the way for a future generation of homegrown academics. Significantly, a number of these journals have chosen to digitize their issues, and have also made efforts to provide free online access to archived issues. The trend was initially started by journals at the National Law School, Bangalore (the National Law School of India Review, the Socio-Legal Review and the Indian Journal of Law and Technology) and has been followed by NALSAR Hyderabad (the Indian Journal of Constitutional Law and the Indian Journal of Intellectual Property Law).

This post seeks to highlight the emergence of the NUJS Law Review, which has joined the trend noted above. Although only three issues old, it is quickly moving towards the achievement of its founding objectives of becoming a “medium of expression and preservation of legal research” while simultaneously serving as “an important component of legal education, training and skills learning for the students of NUJS.” The archives section of the dedicated website of the journal (perhaps a first for a student-run journal, although the IJCL has a tie-up with the commercial database Indlaw that allows it to have a separate section on an existing website) now features the full contents of the first three issues of the journal.

Each of the three issues features stimulating articles on topical issues by some leading foreign (usually German) and domestic scholars, while also containing shorter comments and notes by NUJS students. The subjects canvassed so far include : international criminal law, EU integration, , IP law, WTO law, telecommunications law, election law and a host of other topics. The book review section of each issue covers significant books on Indian law that have been published recently. Many of these articles make for interesting reading. Given my own interests, I found articles by Professors Goerlich (providing a German constitutional analysis of the death penalty) and MP Singh (which is probably one of the early published analyses of the Ashoka Kumar Thakur case) particularly stimulating.

What is most heartening about the journal is that the quality of its student-authored contributions appears to be steadily improving. The third issue in particular presents the work of a team of students, who call themselves ‘the basis structure research group’ and have authored a set of six articles focusing on various aspects of the Kesavananda ruling. Even as I have only begun to make my way through these articles, I am struck by the intellectual ambition and rigour of the analysis on display. As explained in the joint foreword by the authors, the project appears to be the result of a two-year study, and the final papers offer many provocative leads on a subject which may well be the single most analysed issue within Indian constitutional law scholarship.

The NUJS Law Review is somewhat unique in having chosen to be a quarterly. Given that more established journals have had trouble in bringing out even one annual issue in recent times, this fact is itself an indication of the ambitious nature of the project. If the fare that has been on offer so far is anything to go by, we may well have good reasons to closely watch out for succeeding issues.

Too Much Legalization in the World?

In a wonderful article ("Shall We Get Rid of the Lawyers?") in the current issue of the New York Review of Books, Anthony Lewis reviews a new book Life Without Lawyers: Liberating Americans from Too Much Law by Philip Howard. The review suggests that Howard's book discusses, amongst other things, the excesses of American tort law and the manner in which law has found its away into every aspect of daily life creating overlegalization in a range of spheres. While Indian tort law still has much distance to travel before similar excesses can be alleged, reading Lewis' review (and naturally the book!) does provide some interesting ancetodes through which we may be able to assess legalization in India in the years ahead.

Friday, March 27, 2009

Soli Sorabjee on the EC order on Varun

I draw the readers' attention to Soli Sorabjee's article in Indian Express on the E.C.'s order (Who'll silence Varun?). My comments on it are as follows:

1. Sorabjee says: Before elections are announced, by the issuance of notifications required under the Representation of the People’s Act (RPA), neither the model code of conduct nor the RPA ‘s provisions are triggered.. Obviously, he is mixing up announcement of schedule and the issuance of notification, which follows the former. The MCC comes into force after the announcement of schedule, whereas it is debatable whether the RPA provisions can be invoked only after the issuance of notification. In this case, March 1 was the date of announcement of schedule of elections, and Varun made the speeches on March 7 and 8. Can a candidate take advantage of non-issuance of notification to violate RPA provisions? In Suryakant Venkatrao Mahadik's case, the Bombay High Court said no, but the Supreme Court said yes; Since Supreme Court convicted the appellant for a speech he made after the notification, its observations on the HC's judgment regarding the pre-notification speeches are not binding, as they were not relevant to the Supreme Court's final decision.

2. Sorabjee says that the EC's 'advice' (despite the CEC's disclaimer, I still prefer to view it as an order) was certainly beyond its purview and is not legally binding. But he does not explain how.

Here too, he has seemingly mixed up the E.C.'s power to restrict a political party from nominating a person found guilty of violating the Model Code of Conduct, with the E.C.'s imagined power to injunct a person or a potential candidate from making hate speeches. For the latter, he correctly suggests that an ordinance to amend the laws to provide such power to injunct a person from making hate speeches would be necessary.

If you read the EC's March 22 order, it does not seek to injunct Varun Gandhi from making hate speeches. It only seeks his prosecution under the IPC and the RPA, and restrain him from contesting on a party ticket, and deprive him a party symbol, which has a definite advantage in an electoral arena over the candidature of an independent. In other words, Varun Gandhi is free to make hate speeches, and contest as an independent. Prosecution under the laws, and the denial of party ticket are the twin punishments which the E.C. seeks to impose on him for the hate speeches. The E.C. knows that it can't stop him from making hate speeches, or from contesting. But it wants to ensure that it could inflict whatever punishment that is possible on him, so as to minimise the damage that his action caused to the electoral process.

Even while pleading its helplessness to debar Varun because of RPA provisions, the EC, in fact, made the subtle point that parties' recognition and symbols are available to a contesting candidate only if the candidate respects the model code of conduct in letter and spirit. The EC is well within its powers to make this point bluntly rather than couch it in subtleties. For the RPA is silent on the conditions under which parties can be granted recognition and those under which the EC can withdraw it. The RPA is equally silent on the conditions under which a candidate can hope to get a party symbol. The EC can fill this void in order to promote the observance of MCC.

UDPATE: In today's (March 28) The Hindu, Shanti Bhushan explains why the E.C.'s March 22 order must be understood as a binding directive, and not as an advisory.

Tuesday, March 24, 2009

Ragging and Judicial Activism

How effective has been Supreme Court's intervention to curb ragging in higher educational institutions? Well, we don't have final answers yet. Still, I search for some tentative answers by looking at the degree of compliance of institutions and regulatory bodies with the guidelines, laid down by the R.K.Raghavan committee and the Supreme Court, in Campus Cruelty. R.K.Raghavan himself deplores, in this interview that implementation of his report has been half-hearted.

Why Mohd.Afzal deserves mercy

Even as the BJP seeks to make the non-hanging of Mohd.Afzal, the lone convict in the Parliament attack case facing death penalty, as a major campaign issue, the facts in the MHA files show that he indeed deserves mercy. And Afzal's mercy petition itself did not get the media attention that it merits, even though it was the only mercy petition to have been published (in 2007) so far. In two separate articles in latest Frontline, Bikram Jeet Batra and I examine his case with an eye for historical and contemporary details here and here.

EC's Order on Varun Gandhi: Advice or direction?

While watching various channels debate the E.C.'s order on Varun Gandhi's hate speech, I could see that the participants completely missed the real issue. The core issue is not whether Varun is innocent till proved guilty in a court of law. No one has disputed that as far as the cases against him under IPC and RPA are concerned. But the E.C.'s order is significant because it makes a fine distinction between these cases which it has initiated, and its responsibility to enforce the Model Code of Conduct. In this news analysis, I explain this subtle distinction which the E.C. has tried to make in its order.

I've also explained how, despite Varun not being a candidate, his hate speech still came under the mischief of the MCC provisions, because he happened to be a party man first, and a candidate later. If MCC was applicable to the party to which he belonged, even though he was not yet declared a candidate, he was still liable, as the MCC had come into force on March 1. The E.C. did not deal with this issue in its order, but its implications are apparent.

Lastly, the E.C.'s order, is an order. It cannot be an advice. Therefore, after censuring Varun Gandhi, if the BJP is asked not to field him as a candidate in a very clear language, it has to be construed as a direction, and not an advice or a suggestion. A direction to a political party, not complied with, must attract the rigours of Paragraph 16A of the Symbols Order. The order makes it clear that if the BJP does not comply with it, it will be deemed to have violated the MCC itself, and that it is applicable to other parties who might be thinking of nominating Varun. Obviously, the E.C. expects the BJP and other parties to do more than refrain from nominating him, but it is the minimum step which it expects them to do. Therefore, it cannot be an advice, but a direction to adhere to the MCC. The BJP's defiance notwithstanding, I hope the E.C. takes its order to its logical conclusion.

The E.C. has not sought to disqualify Varun Gandhi, by inventing another ground not found in the R.P.A. or the Constitution. Varun Gandhi is free to contest as an independent. The E.C. has only sought to inflict a punishment on him, by depriving him of symbols of any recognised party.

Is the E.C. not expected to issue similar notices to candidates of other parties who might be facing criminal charges? Is the E.C. singling out Varun Gandhi? Not at all. If others have expressly violated MCC during this campaign, obviously, the E.C. is bound to issue notices to them as well. But that is not the case so far.

UPDATE: I just watched the CEC saying it was an advisory, and a recommendation, and it is for the BJP to accept or reject it. Clearly, the E.C. missed an opportunity to test its powers, by following the 'willing to strike, but afraid to wound' policy.

Monday, March 23, 2009

Jamia Millia and Islamic Liberalism in India

I thought I would share this brilliantly written piece by Martha Nussbaum with readers of this blog. Published in the somewhat obscure (at least for me), Boston Review, it tells the story of Jamia Millia Islamia -- that much misunderstood and under appreciated university in our nation's capital and its gallant and distinguished vice chancellor Mushirul Hasan. Nussbaum, who has written persuasively about religious fundamentalism and violence in India, especially Gujarat, paints a poignant picture of Jamia's misfortune in recent times, especially after the September 2008 police "encounter." In the most compelling section of her excellent piece, Nussbaum raises an important, and alarming question that we desperately need to confront: why does our legal system treat Muslims differently than those of other faiths (or of none)?

Perhaps the most alarming aspect of the Jamia case is the atmosphere surrounding those who provide legal counsel to people accused of terrorism. One after another, bar associations in different parts of the country are announcing boycotts of terror suspects. In Madhya Pradesh, two suspects were forced to hire counsel from a different state after all local lawyers refused them. A leading state BJP official supported the boycott, saying that “a distinction must be made between criminals and terrorists.” So much for the presumption of innocence. In Uttar Pradesh, lawyers have been faced with threats to their safety if they take on terror cases. Legal and social activists believe that the Hindu right has profoundly infiltrated the mechanisms of criminal justice making it very difficult for Muslims to get a fair trial. Often, moreover, Muslims remain in detention without trial for years. Muslims constitute 18 percent of convicts in Indian prisons, 21.8 percent of those whose cases are currently being tried, and 37.2 percent of those in detention awaiting either trial or specific charges.

Saturday, March 21, 2009

Varun Gandhi's hate speech: The correct option for the E.C. if it finds him guilty

FLASH: I am glad the EC has heeded my advice! (March 23). Readers can access the full text of the EC's Order here

My last post on the subject rightly drew a few rejoinders in the Comments section of that post pointing out that I might be wrong in suggesting that the E.C. could direct the R.O. to reject Varun Gandhi's nomination on the ground that he violated the MCC. This is because although E.C.'s powers under Article 324 are very wide, it cannot exercise those powers in contravention of the existing laws, governing the field. As S.33 and S.36 of RPA deal with all the grounds of a valid nomination, and how the R.O. must scrutinise the nominations, before accepting or rejecting, the violation of M.C.C. cannot be cited as an additional ground, not found in the R.P.A. To suggest that the E.C. can still use its powers under Article 324, because these sections under RPA are not exhaustive enough, will be a bit of a stretch. This much is clear.

Is there then no remedy against those who wilfully defy the MCC? The only weapon available with the E.C. to enforce the MCC is Paragraph 16A of the Symbols Order, 1968. This Paragraph, inserted by the former CEC, T.N.Seshan on February 16, 1994, has not been used even once, but remains a powerful deterrent against wilful defiance of the MCC. Therefore, if the EC finds Varun guilty of violating MCC, then it could direct the BJP, which is a party to this case, not to field Varun as a candidate. This will be a lawful direction, which the BJP has to comply with. If it does not comply, then the E.C. can freeze its symbol, and deprive it the required recognition as a national party. As the E.C. is expected to announce its decision on March 23, we will have an opportunity to know whether the E.C. takes its threat to its logical conclusion.

Friday, March 20, 2009

Auctioning Mahatma Gandhi's Memorabilia: A Discussion With A Museum Professional

Ramalakshmi is a trained museum professional and has worked in museums in the U.S., including the Smithsonian Institution. She is also a guest faculty in the National Museum Institute, New Delhi. But her career is that of a journalist and she covers India for The Washington Post. Her recent article on the controversy appeared in the Times of India's edit page. In this article, she joined issue with those who argued that Mahatma Gandhi's message is more important than his objects. Here, she answers some of my questions on the controversy regarding the auction of Mahatma Gandhi's memorabilia.

Q: The recently-held auction of Gandhi's memorabilia at N.Y. evoked derision because it was commercialised, and they carried a huge price. I'd agree with you that they have intrinsic value as museum objects. But are not the auction and the importance of treating them as museum objects contradictory to each other? Should there be not a ban on auctioning such objects which are of importance to a museum? What if a collector does not donate to a museum, but keeps them for himself, to be resold for a higher price at a later date. What incentive a collector has to part them with a museum? Do Museums take part in auctions? Can they afford it?

ANS: Yes, on the face of it, it does appear as if the auction of Gandhiji’s objects and their museum display are mutually exclusive. But if the auction had not taken place, how would the world have known that these objects exist? It would have been tucked away in James Otis’ attic or a vault. There cannot be a ban on auctioning historical objects. How can there be one, these have huge commercial value. If I have an original painting of Tagore in my home, why would I not want to sell it at an auction and make money? After all, that is what investment in art is all about. If Vijay Mallaya had not announced his intention to gift the items to the Indian government, there is nothing to prevent him from keeping them in his private collection.

The collector has no incentive to donate them to a museum but a sense of social responsibility that these objects should be available for posterity and for public viewing. Rich philanthropists and art patrons usually buy them and donate them to museums. Many private collectors often open up for public viewing too. Sometimes they lend their collections to the museum for temporary exhibitions, and after viewing the artifacts go right back to the collectors. A few museums do take part in auctions. In Malaysia, the Islamic Arts museum bought at auctions. In India, however, I hear there is a court ruling that forbids museums from entering auctions. But private art galleries do.

Q: According to Mahatma Gandhi's Will, whatever that belonged to him would be the property of Navjivan Trust. Therefore, should not law treat these memorabilia as stolen property? Had Gandhi gifted these to someone, will there be proof for it?

Mahatma Gandhi's Will says:
"I do not believe that I have any property. Nevertheless, anything which by social convention or in law is considered mine; anything movable or immovable; books, articles etc. that I have written and may write hereafter, whether printed or not printed and all their copyright; I endow as my heirs the Navajivan Institution, whom I hereby declare as my heirs, and the Declaration of Trust for the establishment of which I alone with Mohanlal Maganlal Bhatta got registered as a deed of trust on 26-11-1929 and of which Shri Vallabhbhai Jhaverbhai Patel, Shri Mahadev Haribhai Desai and Shri Narhari Dwarkadas Parikh are at present Trustees."

The Will, made in his own hand in Gujarati was dated Feb.20, 1940, and was probated by the surviving Executor of his Will on May 9, 1949.

A: The auction house in New York told me that there are letters from first owners to prove that Gandhi had gifted them, and to prove they were not stolen. The auction house always has to make public the provenance of these objects, to prove they were not looted. There is far too much in western museums even today that are a result of what was looted during colonial times. This is part of huge political roil between nations. Recently the New York Metropolitan Museum had returned artifacts too, after years of wrenching negotiations. Egypt also wanted some of its objects that are displayed in St Louis Art Museum. The museum said that these objects are better preserved in the US than in Egypt. But the latter claimed that it had invested a lot of money in its museums of late and has the capability to store and display them. It is an ongoing debate. Regardless of outcome, it is interesting to watch these debates because you learn about politics and history from their tone and tenor. Tomorrow museums in the west can make the same argument about India and say that Indian museums do not have the capability to conserve them. What will our reply be?

While we are on the subject of the Will, let us remind ourselves that Gandhiji would not have wanted his objects to be worshipped like this anyway.

Q: In 1996, Phillips auction house accepted the same plea (that is, Gandhi's manuscript being auctioned was a stolen property on the basis of the Will) and returned Gandhi's manuscripts to India without auction, on the basis of an agreement. These manuscripts were given away to the auctioners under mysterious terms by Gandhi's former secretary, Kalyanam, who had taken away with him after his assassination. This is what the former Indian High Commissioner to U.K.at that time, L.M.Singhvi had written:

It was on the basis of Gandhi’s will and its probate that we succeeded in preventing the auction of a large collection of Gandhi papers by Phillips, a highly specialised and reputed vintage British company. In the event, we were able to force them to surrender the papers to us. Those papers, valued at several million dollars, are now safely lodged in Nehru Memorial Museum. And let it be noted, they were brought to India at no cost to the exchequer since the auction house and Swami Sivaya of Hawaii Temple, who’d entrusted the papers to the former for auction, had no title to the documents.” Read his full article here.

A: I am not familiar with the details of that transaction. But it depends on what kind of a provenance the auction house had for the manuscripts.

Q: The Delhi High Court issued an injunction against the recent auction, on the basis of Navjivan Trust's petition seeking their declaration as stolen properties. The case has not become infructuous even after the auction, and the next date of hearing is on May 6. The High Court order shows that Navjivan Trust considers the ownership of these memorabilia a mystery. Do you hold that these memorabilia were first gifted. Is there a proof for that?

A: This is an interesting case, and I do not know how this will be pursued now that the objects are on their way back to India. There is a 20-day period after an auction where anyone can raise objection. If the auction house provides proof of the letters of the first tier of transaction to demonstrate that they were indeed gifted, then they are not stolen. But it would be interesting to see how this proceeds. Perhaps, the outcome of this case could become a template for future events.

Thursday, March 19, 2009

Varun Gandhi's hate-speech and the law

Varun Gandhi's hate speech has been delivered under peculiar circumstances, and the EC is confronted with a new situation. He is yet to secure his party's nomination as a candidate for the Pilibhit Lok Sabha constituency. The very registration of a case against him, prior to his filing nomination papers,(if at all the BJP gives him a ticket) cannot be a factor for rejecting his nomination by the Returning Officer. Moreover, relief under RPA will be availabe to a losing candidate only after the election is over.

Varun Gandhi made his controversial speech after the Model Code of Conduct has come into force. Therefore, if the EC concludes that he has violated the Model Code of Conduct, then the Returning Officer will have valid reasons to reject his nomination under Section 36(6) of RPA.

However, a difficulty will still remain. The Model Code of Conduct (MCC) is for the guidance of political parties and candidates. The EC had taken stringent action, including postponement and annulment of election, on the ground of violation of MCC by the parties or candidates. Thus rejection of his nomination on this ground would be a valid exercise of EC's and R.O.'s powers. The EC has wide powers to enforce the MCC, even though it does not have statutory backing.

But Varun Gandhi was not a candidate when he allegedly made that hate speech, even if his speech comes within the mischief of Clauses (1) and (3)of Item 1 of the MCC, which says there shall be no appeal to caste or communal feelings for securing votes. One hopes that the E.C. will not let him exploit this loophole, but give a broader interpretation to the MCC. He should be deemed as a candidate when he made that offensive speech, as his party is already bound to follow the MCC, and to require its members to observe the MCC in letter and spirit. If the EC’s rejection of his nomination is challenged in a court, it can be a test case.

Having said this, I must point out a minor flaw in Vinay Sitapati’s well-written piece (Frame by frame) arguing for punishment for Varun Gandhi. He has written that no election has ever been invalidated because the winner made communal speeches. There is at least one. In Suryakant Venkatrao Mahadik’s case, the SC set aside his election on this ground. The judgment is worth reading.
In Dr.Ramesh Yashwant Prabhoo's case, which Vinay refers to in his piece, Prabhoo's election was declared void, because he was found to have given his implied consent to Bal Thackeray's hate speech. The E.C. recommended Prabhoo's disqualification for a period of six years from the date of the Supreme Court's order, viz., 11.12.1995, even though Prabhoo had completed two terms as M.L.A. after the by-election in December 1987 in which he had impliedly consented to Thackeray's hate speech.

Tuesday, March 17, 2009

Prashant Bhushan's talk in Oxford (and legal and political criticisms)

Update: Arvind Narrain's LASSNET paper linked below (and here).

Prashant Bhushan (noted public interest lawyer) presented a carefully-researched paper titled
Sacrificing Human Rights And Environmental Rights At The Altar Of “Development” in Oxford on the 14th of March 2009. The full-text of the paper can be accessed here. Citing several cases, the talk concluded as follows:
The trend of recent cases, therefore, suggests that (1) the Court has often subordinated civil liberties to the perceived imperative of state security, particularly in the context of the recent “war on terror”, (2) The Courts’ liberal and expansive pronouncements on socio-economic rights under article 21 have not been matched by a determination to implement those rights, (3) That since the liberalization of the Indian economy, even the courts’ rhetoric on socio-economic rights have been weakening, (4) That very often the Court has itself ordered the violation of those rights, violating in the process even the principles of natural justice, (5) That whenever socio-economic rights of the poor come into conflict with environmental protection, the Court has usually subordinated those rights to environmental protection, (6) That whenever environmental protection comes into conflict with what is perceived by the Court to be “development” or powerful commercial vested interests, environmental protection is usually subordinated at the altar of “development”, or such powerful interests. There are of course exceptional judgements which defy these trends, particularly from High Courts.
One strand of discussion that emerged after the talk (although not necessarily directed towards Bhushan's paper and one with which he sympathised) related to the nature of academic criticism of judgments. The argument was that Indian legal scholarship has usually offered political criticism of judgments, but a 'legal critique' has not always been forthcoming. While the importance of the former cannot be denied, the latter may sometimes be useful (if only strategically, since legal language is one that judges understand better).

The discussion made me think about Arvind Narrain's paper presented at the LASSNET conference where he made a similar point in the context of the queer rights movement. Except those adhering to legal realist schools of thought, few of us will consider the following claims to be legally plausible (whatever our position might be ideologically):

1. That by providing due process norms for determination of who is a foreigner, Parliament had in effect allowed unrestricted immigration, which amounts to external aggression under Article 355--therefore
the IMDT Act was unconstitutional.

2. That the
Chief Justice of India's Office is not part of the Supreme Court, nor is it a 'public authority' under the RTI Act.

How then do our top lawyers get away by saying things any competent first year undergraduate will know to be nonsense? Don't legal academics need to share some blame for allowing them to get away with such arguments? (Of course there have been exceptions, and the claim that most critique is only political is a huge generalisation. The claim is admittedly anecdotal, and perhaps only relative. Yet, I believe the broader argument stands.)

Legal and political critiques

Some readers have asked me to elaborate upon the distinction between legal and political critiques. Admittedly, the distinction is not always clear. But very broadly (and with many exceptions), I think the effect of an order in a judgment can be criticised on the basis of various political values, while how that result was achieved (i.e. the reasoning in the judgment) may be subject to legal criticism. In effect, the latter claim recognises that interpretation is not an unrestricted exercise--therefore, it believes that the (caricatured) legal realist claim that 'law is what the judge had for breakfast' is wrong. One may disagree on what makes an interpretation illegitimate. Examples include Hart's famous 'vehicle in the park' problem, or Dworkin's hypothetical judge Hercules who must adopt the best normative principles that fit within a given legal history. Whatever may be one's approach to legal interpretation (except Legal Realism), at least some interpretative exercises will be illegitimate. This is an internal legal critique--when the Court says that delay by rule of law procedure for nationality determination encourages 'external aggression' and therefore such procedure is unconstitutional, that is not an interpretation most normative appraoches to law can sustain.

This is only a general explanation. Sometimes law itself may deem certain results to be impermissible--criticising these results can thus be legal as well as political. I must reiterate that I think there is enormous value in political critiques. I just think that there is value in legal critiques as well (strategic as well as normative). In failing to make them, we in fact allow the law to be what the judge had for breakfast.

Monday, March 16, 2009

A Bright(er) Day in Pakistan

Awaking to the news that the government in Pakistan had agreed to reinstate Chief Justice Chaudhry I couldn't help but feel a pride in the legal profession and happiness for all those lawyers in Pakistan who have sacrificed so much in terms of personal safety and lost income in making this happen. Hopefully, it will mark a step in the direction of a politics where every group (whether the political parties, military, judiciary, or outsiders like the Americans) realizes it is impossible for any one group/person in the country to dominate power by themselves . Instead, everyone will benefit by strong institutions that allow power-sharing along pre-agreed rules of decision-making (i.e. a robust constitutional system).

That said, there are still plenty of reasons for concern, even when just looking at the independence of the judiciary. That part of the reason Sharif called off his protests was that Zadari also agreed to appeal the case that disqualified him and seemingly guaranteed that the verdict would come out differently does not bode well for judicial independence. Nor is Sharif's record on judicial independence clean - he has in the past physically attacked the Supreme Court as well as threatened to imprison a sitting Chief Justice.

On a more academic note, we might also want to consider what made the Chief Justice such a powerful figure in all this - i.e. his or her ability to decide who sits on what panels and which cases are taken or not, and thereby directly control outcomes of cases and their timing. A similar system of course is found in India as well. Not all panel Supreme Courts have this design though. Mongolia, for example, creates a small committee of Surpeme Court judges to decide how cases will be distributed. This may not be the system one wants to follow, as although it arguably makes it more difficult for the executive to control one judge who can control the Court, it also prevents "maverick" chief justices like Chief Justice Chaudhry of having as large of an impact. Still, I think recent events will help feed our understanding of what a Chief Justice's role should ideally be.

For those interested I've found that generally the best coverage of the second long march in Pakistan has come from the Dawn.

Sunday, March 15, 2009

Screening “Smoking” Bans through a Constitutional Lens

I began a discussion with Madhav Khosla after reading his interesting take on Justice Kaul's "smoking" judgment. Unfortunately, owing to certain intervening events, I lost the thread and came back to articulating my stand on this issue only recently in this Mint editorial. I reproduce it below. I benefited greatly from discussions with Madhav, Arun and Tarunabh and thank them for their insights.

Given that "smoking" related cases are still pending before the courts, this issue is a burning one that refuses to be stubbed out in the near future. So do continue watching this space for more.

The law, smoke and mirrors

"I often wonder about the hours when a man sits alone, watching the smoke of a cigarette, thinking. I wonder what great things have come from such hours. When a man thinks, there is a spot of fire alive in his mind— and it is proper that he should have the burning point of a cigarette as his one expression.”

Ayn Rands’ sentiments mouthed through one of her characters in the classic Atlas Shrugged may have spurred some of us to light up. But ought that be reason enough to prohibit the publication of this book in India? Although current legal norms weigh against such censorship of the printing press, it certainly sanctions it when “text” migrates to “screen”. The law vests our Central Board of Film Certification (CBFC) with the discretion to axe any scene that glamourizes or encourages smoking, notwithstanding the fact that such scene may be integral to the plot or to the character. And notwithstanding the fact that the law does not prohibit smoking, unless committed within public precincts.

It is in this context that the Delhi high court’s recent denunciation of a regulation banning the depiction of on-screen smoking is a very welcome one for those of us who zealously guard our free speech rights against an overtly paternalistic state. Justice Sanjay Kishen Kaul rightly notes that such regulation violates the right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India.

However, the judgement is problematic in that it implicitly endorses CBFC’s right to interfere with artistic freedom, when the scene in question encourages smoking.

The case centres around a rule (promulgated under what is commonly referred to as the Cigarettes Act, 2003) which prohibited “characters” in films and television programmes from “displaying tobacco products or their use”. A writ petition challenging the constitutionality of this rule came up before justice Kaul. It is very difficult to take exception to justice Kaul’s staunch defence of the freedom of speech guaranteed under Article 19(1). However, his reasoning leaves much to be desired.

For one, he ducks the issue of whether or not certain exceptions articulated under different heads in Article 19(2) can save the governmental regulation in question, claiming that it is not germane to the controversy. Not only is it germane to the controversy, it is absolutely critical.

Article 19(2) permits the state to intrude upon the right to free speech when such intrusion is “reasonable” and is in the interest of any of the following: the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

It is difficult to see how the banning of on-screen smoking would fit within any of the above heads. Although one may qualify measures to discourage smoking as “public health” measures, this cannot tantamount to preserving “public order”.

As for “decency” and “morality”, the less said the better. The closest I ever came to witnessing such a nexus was when a student of mine categorically asserted that “civilized people do not smoke”.

Without dealing conclusively with whether or not the impugned ban fitted within any of the above heads, justice Kaul assumed that even if it did, it would still not amount to a “reasonable” restriction. Particularly since there already existed another guideline under the Cinematograph Act, 1952, that permitted CBFC to chop “glamourized” smoking scenes. In other words, an outright ban on “any” smoking scene was “unreasonable”, whereas a ban on only “glamourized” smoking scenes was perfectly constitutional. But this begs the question: Do such bans fall within the purview of the Article 19(2) categories at all? Unless they do so, one need not bother examining their reasonableness or otherwise.

Although the legality of the CBFC guidelines was not in issue, justice Kaul implicitly defends them. It is therefore imperative that film-makers take steps to challenge the constitutionality of these guidelines.

On a broader note, if our zealously paternalistic state is worried about the ill effects of smoking, it must take on the tobacco lobbies and ban smoking altogether (as to whether such a measure is likely to withstand a constitutional challenge is a moot issue). But until then, a film-maker must be offered the artistic freedom to depict the iconoclastic Hank Rearden lighting up his cancer stick in as swashbuckling a manner as possible. Even if this necessarily means more smoke-filled lungs and the encouragement of a habit described by James I as “loathsome to the eye, hateful to the nose, harmful to the brain...[and].. dangerous to the lungs...”

Saturday, March 14, 2009

Rethinking Social Justice Remedies

This is a certainly thought-provoking, although not completely novel, presentation by Yogendra Yadav in Mysore. It is a reprise of a talk he gave previously on the same subject, and was covered on this blog. Yadav's central theme is spot on -- there has been great intellectual paralysis in discussing social justice remedies in India. It is stunning that, although almost two decades have passed since the Indian economy opened-up, social justice and affirmative action has been exclusively focussed on reservations in government jobs ignoring the new hierarchies of social exclusion in the private and non-governmental sectors. I'm personally against mandatory quotas for private companies. But we urgently need more imaginative approaches, such as tax and financial incentives, that encourage private entities, both large and small, to voluntarily embrace social inclusion and diversity.

Friday, March 13, 2009

Nawaz Sharif and Jayalalithaa: How Indian SC handled the disqualification issue

While reading an article on the ongoing turmoil in Pakistan, I couldn't miss the parallel between Nawaz Sharif's disqualification with that of Jayalalithaa in 2001. In both cases, the question to be adjudicated was whether a stay on sentence would amount to a stay on conviction, and whether for disqualification to go, a stay on conviction, and not just sentence, was equally necessary.

While upholding the Lahore High Court's Full Bench decision last month, the Pakistan Supreme Court has delivered only a brief order, saying reasons would be given later. The details of the Lahore High Court's judgment, delivered last year, throw only limited light on this aspect of the case. Both the Lahore High Court and the Pakistan Supreme Court seem to have adopted, without making any reference to it, the reasoning of the Indian Supreme Court, in Jayalalithaa's case (B.R.Kapur vs. State of Tamil Nadu)by maintaining that a suspension of sentence alone does not amount to stay on conviction.

The reason for referring to the Jayalalithaa's case in this post is that I was hardly convinced then about the Supreme Court's judgment disqualifying her on the subtle distinction between the execution of sentence and the sentence itself. Thus while the High Court stayed the execution of her sentence by the trial court, her sentence remained, along with her conviction, and this was a disqualification under Section 8(3) of RPA. That she was finally acquitted by the High Court and the Supreme Court, in the case in which the Trial court convicted her, was another matter.

In a series of articles here, here here,and here I dealt with the issues arising out of her disqualification controversy. This article deals with anomalies in S.8 of RPA. Some of the anomalies referred to in S.8(1)have later been corrected in an amendment in 2003. (See the RPA linked on the left under the Election Law).

It is interesting to note that Court judgments whether in India, or in Pakistan, are respected, howsoever litigants may differ with them. In the Jayalalithaa case too, her counsel told the Supreme Court that if she was disqualified, it would be going against the public opinion, and democracy and there could be mass protests. But the Court was not convinced, and eventually her disqualification passed off without any major incident. Pakistan, on the contrary, is in turmoil, following the Court's judgment, even though, in substance, it is not directed against the judiciary.

Jayalalithaa was not the first and the last time when the Courts intervened to determine the career of political leaders. In this article in Tribune carried in 2001, advocate and columnist, Anupam Gupta reflects on the wisdom of applying the rigours of election law on the political class.

His words are prescient: "It is important to bar the entry of criminals into politics. But it is no less important to distinguish between criminals — murdrers, dacoits or rapists — who enter politics, and politicians who are convicted of crime. However tired democratic India may be of its professional politicians, it is necessary for it to respect this distinction lest the campaign against criminalisation of politics end up in the depoliticisation of India — the best way for a democracy to commit suicide or slide into fascism."

In this post-verdict piece, Anupam Gupta explained why he was unconvinced about the legal soundness of the Supreme Court's judgment in the B.R.Kapur case, even though it is noteworthy for the moral benchmark it has set.

While judiciary in both Pakistan and India can claim to be robust while dealing with the political class, the fragility of Pakistan's other institutions, perhaps explains the current turbulence following the Pakistan Supreme Court's verdict.

Thursday, March 12, 2009

Andhra Pradesh Civil Liberties Committee v. The Government of AP

Having read the well-written judgment by the AP High Court in the police encounter case, I am more than convinced that its order is unexceptionable. Its order can be summarised thus:

Every time a person is killed by a police officer,
1. If a complaint is made, an FIR must be registered. Judicial precedence is clear that police do not have a discretion not to register an FIR. The FIR's sincerity, veracity etc cannot be determined at the registration stage. Also, it is not necessary for the FIR to name the officers involved.
2. Once an FIR is registered, an investigation must be launched. The investigation may conclude that (a) no killing took place, or (b) that the killing was excused as an exercise of one's right to private defense, or (c) that the killing was not excused and therefore illegal.
3. The Judicial Magistrate is not bound to agree with an investigation report which concludes that the killing took place in course of the exercise of the right to private defense. The judicial discretion must be exercised independently and if the Magistrate thinks that this is not conclusively proven, she can take cognizance under section 190 fo the Code of Criminal Procedure.

This is regular criminal law, and one is suprised that it took a High Court ruling 60 years after independence to suggest that it applies with all its force to all citizens, police officers or otherwise. Which is why the Supreme Court's interim stay on the order is surprising. Mr. Salve, arguing for the stay, reportedly told the court that “If this is implemented, FIRs and cases would be filed against policemen who killed terrorists in Parliament attack case or the Mumbai Terror attack.” Responding to the argument as reported in the newspaper, one can argue thus:

1. Yes, an FIR will be registered if a complaint is made. Law is clear on FIRs - it does not suggest anything regarding veracity, even entirely made-up complaints must be registered.
2. An investigation must be launched in furtherance of an FIR - it will probably conclude, given the circumstances of the Mumbai attack, that the killing was done in exercise of the right to private defense.
3. The report will be submitted to the Magistrate, who, in all likelihood will conclude that the findings of the report are true and that she should not take cognizance. The AP HC judgment is clear that the Magistrate is not bound to take cognizance - there is discretion under section 190 of the Criminal Procedure Code. This obstacle involving the judicial application of mind should be enough to calm any fears that the AP judgment has done anything extraordinary.
4. In any case, any cognizance of a case against a public servant, including a police officer, cannot take place without the prior consent of the government, under sections 132 and 197 of the Criminal Procedure Code. This added Executive filter is wholly unnecessary and is often abused. But it should remove all doubt that the AP HC judgment is open to misuse. [Readers might be interested in Mihir Desai's recent article in the EPW in this regard.]

For a contrary perspective, see Venkataramana's article (hat tip to Venkatesan). The argument is that 'A better alternative to this total distrust of the police force could be to appoint a judicial magistrate and arrange for a television crew team to accompany the police when it controls the mob, faces the extremists or confronts the terrorist. Only then will the judicial magistrate or judge be able to consider the circumstances of the incident. No court can assess the incident on the basis of a reported description of the event. With respect, the ruling of the Andhra Pradesh High Court is completely impractical. '

This is a serious issue, and calls into question the entire basis of the criminal justice system which can only revisit past events through witnesses and other evidence. Presumably, these reported accounts are incapable of capturing what really happened not just in encounter cases but in every area of criminal activity. I am not dismissing the argument, only suggesting that if true, it calls for an overhaul of the Evidence Act, rather than merely create exceptions for police from the criminal justice system.

Wednesday, March 11, 2009

Justice Srikrishna’s Interim Report: A few answers for Mr.Venkatesan

Here is a guest post by Gopal Sankaranarayanan, an advocate practising in the Supreme Court of India, which responds to Venkatesan's post on the Srikrishna report. I'm also posting below Venkatesan's response to Gopal's post.

It is with some interest that I read Mr.Venkatesan’s post concerning the much debated interim Report submitted by Justice Srikrishna regarding the recent events at the Madras High Court. While I will not quibble with the fact that the author has been a little casual in his summing up of the Report (“with the connivance of the judiciary”, “if this root cause had not been there, the temptation to use excessive force would not have been there”), I do take issue with what I feel has been a selective and limited reading of it. I wish to address these concerns in the order that Mr.Venkatesan has done:

1. Justice Srikrishna's Omission: Mr.Venkatesan conveys the impression that ‘Who started it all?’ was the primary question that agitated the Supreme Court. In fact, having been present in the courtroom on the days when the matter was heard, (19th, 23rd, 25th and 26th of February), I found that the Court was primarily concerned with pacifying the strong contingent of Madras lawyers and cajoling them to call off the strike, at which point they sought the suspension of the police officers in order for them to return to work. It is this demand, in fact, that is reflected in the following words of the Bench in its Order of 26th February 2009:

“The Committee initially shall consider any immediate action against the police officers who allegedly allowed armed policemen to enter the premises of the High Court without permission of the acting Chief Justice.”

Mr.Venkatesan somehow concludes that the vital question of identity remained unanswered in the interim report and says - “Justice Srikrishna writes: ‘It is not clear from the videos as to who was the officer that ordered the lathi charge’. It does great injustice to suggest that the good Justice had only one pithy line to offer to those baying for names. A glance at Page 11 of the Report will show that the above quote is in fact only a section of a sentence regarding the Commission’s difficulty in determining identity. The true extract is:

Although, some representations and affidavits given by the lawyers name Director General of Police Mr. Jain, Commissioner of Police Mr. Radhakrishnan, Joint Commissioner of Police ,Mr. Ramasubranaian and Deputy Commissioner of Police, Mr. Saraangan as having ordered the lathi charge, it is not clear from the videos as to who was the officer that ordered the lathi charge. The video taken by the official videographer of the police has a timer ad indicates the time from second to second but the videos taken by the TV staff produced by lawyers do not show the timings. The official video does not show the presence of the Commissioner of Police till about 1714 hours. From the information given by the Home Secretary and the Police Commissioner, it would appear that upto that time only the Additional Commissioner of Police K Vishwanathan was in charge and the Police Commissioner arrived on the scene at about 1714 hours upon receiving the information that the situation was going out of hand. At about 1715 hours the Commissioner of Police is seen restraining the men and asking them to retreat.

The above paragraph makes it abundantly clear that the ACP was “in charge” when the lathi charge was ordered, and that the Commissioner had not arrived at the scene. Yet, Justice Srikrishna desists from leaping to any conclusions as to who in fact had ordered the police action. That would require further investigation (more than 2 days’ interviews could afford), and would remain a wholly academic question if the Committee did not consider it necessary to institute any immediate action against the police officers involved, which in fact was the true mandate of the Order of the Supreme Court.

And of course, to expect the police officers who were interviewed to spill the beans on their superiors is naiveté, which a brief experience of India’s feudal babudom can soon dispel.

2. Justice Srikrishna’s anxiety – Mr.Venkatesan seems to be somewhat confused about the mandate of the interim Report. The only task before the Committee was to ascertain whether any “immediate action” would be recommended against the Police Officers at this stage. It did not in any manner contemplate action against the armed Policemen who had actually indulged in the mayhem that was unleashed that unhappy day. It is unclear why the Report would cause such disappointment and hand-wringing regarding issues that were never in its ken. At no stage has Justice Srikrishna exonerated the policemen who perpetrated the atrocities – he has in fact roundly condemned them. I find it difficult in this background to accept the facetious conclusion drawn by Mr.Venkatesan about Justice Srikrishna – “he believes that the use of excessive force by the police was a response to this root cause”.

3. Justice Srikrishna’s aversion – A glance at the Comments section of the Post in dispute shows me that Mr.Venkatesan has issued a qualified detraction of his remarks concerning lawyers’ agitation over political issues. While I agree with the views of Suresh, Jenna and Anonymous who have granted me respite from having to frame a response, it might be apposite to gently remind ourselves of the words of the Constitution Bench in two separate passages of Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45:

A dispute between a lawyer/lawyers and police or other authorities can never be a reason for going on even a token strike. It can never justify giving a call for boycott. In such cases an adequate legal remedy is available and it must be resorted to.

It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention (sic) from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or Independence of the Bar and/or the Bench.

While I also agree that Mr.Venkatesan’s analogies ought to be rejected, it would be worth contemplating whether, even in a situation like the Emergency, (where lawyers were affected, and at the forefront of the protest) the Bar ought to be allowed to go on strike, as this would further disenfranchise an already cowering public.

4. Justice Srikrishna’s Lack of Clarity – In the Comments section, Mr.Venkatesan seeks clarity from the Report as to how the Acting Chief Justice should have handled the situation instead of the “soft policy” he had adopted. Neither was this the scope of the Report, nor should a Committee appointed in this regard voice its unsolicited suggestions. As it is, the Chief Justice of India has expressed his acceptance of this view of Justice Srikrishna.

Venkatesan's Response to Gopal's Post

1. I am surprised how I conveyed the impression that the SC was concerned with the question, who started it all. I have clearly written in my post that it was Justice Srikrishna who was concerned with this question, whereas the SC was concerned with the question of who ordered the lathi charge, among other things. I was not present in the Court, but that was the impression I gathered from the media reports. I will, of course, stand corrected if there is any discrepancy between the media reports and what actually transpired at the Court, as Mr.Gopal was present.

2. I did not suggest that Justice Srikrishna dismissed the question of who ordered the lathi charge in that one sentence. I only relied on that sentence or part of it, to convey that he could not establish it from the videos which he had seen. It is true I was naive in suggesting that the police officers could have revealed it. Because if they do not reveal it, it would most certainly confirm that they have something to hide. If I read the report correctly, Justice Srikrishna does not recommend an inquiry into this aspect, but only recommends an inquiry in identifying individual policemen who went berserk. (I am willing to be corrected, if I am wrong on this).
In situations like these, there must be clearly laid down rules or norms as to who should order lathi charge or even firing, if the situation goes out of control. Therefore, it must be easier to fix responsibility, rather than look for actual evidence, which may not be forthcoming. If on the contrary, the policemen who went on a rampage received unofficial orders for lathi charge, then it is a cause for worry, and even ominous.

Such situations can recur, and the innocent lawyers will still be apprehensive of being caught in the crossfire between the police and the unruly elements within the bar - a valid justification for the boycott, because they rightly feel that they may not have the conducive secure atmosphere to function when the police can lathi charge or even fire without orders, or with orders clouded in mystery. It only vindicates the lawyers' continued boycott of courts.

In fact, Mr.Gopal suggests that Justice Srikrishna departed from the Supreme Court's mandate, by refraining from recommending action against the police officers who were responsible for the lathi charge, whereas it should have been easier to identify such officers at least on the basis of rules, norms, and well-established precedents. If the ACP was in charge, what prevents him from accepting that he issued orders for lathi charge because the situation warranted it? If no one else other than ACP could have issued orders at that time, what prevented the Commission to quiz him on this, and report his response in the report, even if it requires further cross-checking or enquiry.

3.As for SC judgment in the Harish Uppal case, why has the High Court and the SC not intervened earlier to enforce this judgment when there were similar srikes by lawyers - or even now? Does it show that the judgment is unenforceable, or out of sync with reality - like its judgment banning bandhs and strikes by political parties?

Tuesday, March 10, 2009


It is a delight to read A.G.Noorani on politics, history and law. However, it is rare to find AGN to write on things other than these disciplines. Here is one book review,on an overlooked part of Indian life, which I am sure, will be equally a delight to read. For those looking to read his regular contributions, here is his review of two books on atomic bomb and cold war.

I had never imagined that the relationship between peace and human rights could be quite fascinating in practice. The two books I have reviewed in the recent Frontline issue examine this relationship from different perspectives. Sally Engle Merry identifies the conundrums facing the practice of human rights through empirical studies. The edited volume by Ujjwal Kumar Singh explores the tensions between human rights and peace through several case studies.


Department of Justice's user-friendly website

I received the following guest post from SUBHASH CHANDRA AGRAWAL, RTI activist:

The Department of Justice should be complimented for launch of its new user-friendly website aimed towards transparency through e-governance. The website has incorporated many new features like ‘Memorandum of Appointment and Transfer of Judges in Higher Courts’, ‘Initiatives for Judicial Reforms’, ‘Vacancy Statement of High Court Judges’ etc. which were till now shrouded under secrecy-cover. The important aspect is regular updating of the website depicting the date of last updating. Even statement of ‘Disposal of RTI requests’ is now included on the website. However all government-websites should incorporate ‘Guest-Book’ column to include observations and suggestions from members of public about activities of the concerned government-department.

National Informatics Centre (NIC), responsible to manage government-websites should overhaul other websites on the same pattern. Directorate of Advertisement and Visual Publicity (DAVP) which wastes huge amount of money from public-exchequers on photo-publicity of political rulers, should rather give advertisements to make public aware of new government-websites like that of Department of Justice.

Here are the two relevant links, which would be of interest to us:

Memorandum of procedure for appointment of Judges in Supreme Court
Memorandum of procedure for appointment and transfer of Judges in High Courts

Monday, March 09, 2009

Justice Srikrishna's interim report: A few questions

Justice Srikrishna's interim report on the violent incidents at the Madras High Court complex on 19th February is now available in the public domain. Obviously, Justice Srikrishna has been concerned with the question, `who started it all?'. He correctly traced the events to the attempt to campaign, by a section of lawyers, on political issues within the High Court complex, with the connivance of the Judiciary. At the same time, he also found the excessive force used by the Police as disproportionate to the challenge posed by the unruly lawyers, as many innocent lawyers and a Judge were injured by the police lathi charge, and the police went berserk by damaging the Court's property in retaliation.

Surprisingly, Justice Srikrishna does not answer the question who ordered the police lathi charge, but says the order was interpreted by the police to unleash mayhem at will. Considering that the Supreme Court was concerned with this issue during the hearing of the case, one would assume that this was a relevant factual question to be unravelled. Justice Srikrishna writes: “It is not clear from the videos as to who was the officer that ordered the lathi charge”. Justice Srikrishna reveals in the Report that he interviewed police officers also. Do the police officers also plead helplessness in ascertaining the name of the officer who ordered the lathi charge? The report has no answers.

Secondly, as an impartial observer of the entire episode, I am concerned with the following issues, for which I have not found an answer in the Justice Srikrishna Interim Report. Hopefully, these will be addressed in his final report.

1. Justice Srikrishna's anxiety to trace the root cause of the Feb.19th incident also reveals his concern on how to avoid repetition of such incidents. Apparently, he believes that the use of excessive force by the police was a response to this root cause, and if this root cause had not been there, the temptation to use excessive force would not have been there. Many innocent lawyers, who were injured in the incidents, and who have nothing to do with the agitating lawyers, or the indifferent Madras High Court administration, (and I count myself as one among those innocent lawyers by temperament)are sure to find the Report,with utmost respect to Justice Srikrishna, disappointing in this respect.

Tracing the root cause, though useful in an academic sense, is unhelpful in fixing responsibility for what has finally happened. To be fair to Justice Srikrishna, he found the limited time inadequate to deal with the issue, and has suggested a detailed inquiry to identify the individual policemen or lawyers who indulged in hooliganism. But a recommendation for a broader reform of the police system to protect innocent lawyers or members of the public from being attacked in situations calling for a swift response from the police in case of a riot-whatever the root cause - would have been pragmatic.

2. Justice Srikrishna's aversion to lawyers' agitation over political issues not connected with Court work- again with very great respect to him - is somewhat unconvincing. He says: “The lawyers had continued their boycott of court proceedings in sympathy for the Sri Lankan Tamils, a purely political issue that had nothing to do with the work of the Courts. Yet the lawyers continued to abstain from the Courts in order to put pressure on the State and the Central Governments”. I would agree with him that the Madras High Court is not at all concerned with the Sri Lankan Tamils issue, and the lawyers' agitation over the Centre's inaction on this is not at all justified, and the call for strikes over the issue must be considered as a serious professional misconduct. Therefore, his plea for amendment of Advocates Act, and till such amendment, appropriate guidelines to be laid down by the Supreme Court to ensure certain degree of discipline by the lawyers makes sense.

But can one stretch this to say that lawyers must not be concerned with any political issue, which has nothing to do with the Courts, lawyers or the litigants to the extent that it results in boycott of courts? I only wish that such an inference from his Interim Report is just far-fetched. Because such an inference would suggest that the movement for democracy began by the lawyers in Pakistan must be considered as a serious professional misconduct; Or that the lawyers' stir in support of the freedom struggle (before independence) should be considered as unprofessional; Or that the lawyers in India justifiably did not launch a movement for democracy during the Emergency by taking to the streets.

Saturday, March 07, 2009

No Criminals in Politics

As India goes to elections in a month’s time, there is a pervading sense of concern and of dismay about the candidates, political parties and alliances that form part of the electoral canvas. A staggering 20% of the current members of Parliament have criminal records, some of whom have charges of heinous crimes such as murder, rape, dacoity and kidnapping against them. While section 8 of the Representation of People’s Act, 1951 provides for the disqualification of a candidate from election following conviction for an offence listed in that section, section 8(4) provides that such a disqualification shall not take effect if there is an appeal or application for revision pending in respect of that offence. Given that there is an automatic right of appeal with respect to most criminal convictions and the tremendous backlog of cases in courts as discussed in previous blogposts here and here, not only do most MPs complete their terms before an appeal against their conviction is disposed off but also often if they belong to the party in power, the cases against them fall apart due to political pressure on the investigative agencies and presumably also on the courts.

In an attempt to rectify this situation and galvanized into action by the Mumbai terror attacks, the Public Interest Foundation in New Delhi chaired by Bimal Jalan, a nominated member of Parliament, has launched the “No Criminals in Politics” campaign. According to the campaign concept note, “[t]he recent Mumbai attacks have once again highlighted the need for individuals with a high level of personal integrity to provide effective leadership for our country.” The core idea of the campaign is to initiate a nationwide effort to enable large numbers of citizens to appeal to political parties not to give tickets to people with criminal antecedents in the upcoming elections. The campaign website provides information on the criminal antecedents of sitting MPs and also provides details of such criminal cases. It also provides news and updates about the election alongwith its partners, the Association for Democratic Reforms, National Election Watch and Jaago Re. The campaign calls upon people to popularise the campaign message through email/sms, social networking sites, discussions in the blogosphere as well as through organisation of events propagating the campaign message in places across the country.

Thursday, March 05, 2009

AP High Court judgment on police encounter

Full-text of the judgment of the Andhra Pradesh High Court in the case of Andhra Pradesh Civil Liberties Committee v. The Government of AP is posted here. The judgment required an FIR to be registered after every case of police encounter (I have read the case yet, this much is from news reports). The judgment was stayed by the Supreme Court yesterday.

Tuesday, March 03, 2009

High Courts and backlogs

There is an interesting article in the latest edition of Outlook here on backlogs and delays in the various High Courts. The article does not make any new arguments- the interesting part is really the statistics. Even assuming 5 minutes for each case, our high courts need 297 years to dispose off the backlog. That number is staggering and becomes enormous as we know it is impossible to dispose any case in 5 minutes. Of course, 297 is not the real number as it is only an aggregation of the time required by the various high courts. The actual time ranges from 1 to 60 years, with the average time required by the larger courts being more than 20 years. For lawyers, this appears hopeless. For justice seekers, this is crushing.

Monday, March 02, 2009

Panel discussion on 'Should media scrutinise religion?'

The FMP's panel discussion on 'Is religion beyond media's scrutiny?' brought forth interesting responses. Some speakers, notably Chandan Mitra and Maulana Wahiduddin Khan, took objection to the use of the word 'scrutiny' as in their view the word requires a high degree of competence on the part of journalists, who are generally unaware of the nuances of religion, which they want to scrutinise. But as Madhu Kishwar pointed out, are those claiming to be religiously outraged by contents in the media competent to understand, protest against and seek censorship of what, according to them, offends co-religionists?

The consensus was that they are not. But what appeared to divide the panelists, especially, Chandan Mitra and Madhu Kishwar was that the former wanted the continuance of S.295A IPC (India's blasphemy law) if only because the Indian society is volatile, whereas for the latter, a group of goondas claiming to represent any religion, cannot dictate what and how a law should be enforced and in what context. Chandan Mitra, however, suggested that journalists faced arrest because the Governments wanted to protect them from the wrath of the enraged public.

Madhu Kishwar referred to the 1986 law against indecent portrayal of women in the media as one instance of law coming to the aid of moral policing. She said when she opposed the law at the time of enactment, she was misunderstood, but the law appears to provide legitimacy to Hindu zealots.

Interestingly, all the three editors, who were recently arrested under Section 295A and later released were there - Basavaraj Swami, B.V.Seetharam and Ravinder Kumar - and they narrated their experiences. The question posed by the moderator of the discussion, Manoj Mitta, whether S.295A needs to be repealed or at least whittled down in view of its abuse seemed to have few takers. Manoj posed the question in the context of Britain repealing its blasphemy law last year, and Pakistan making its blasphemy provision draconian, by adding 295B and 295C to its Penal Code. The ingredients of Section 295A IPC(deliberate and malicious intention of outraging religious feelings) constitute a serious limitation on its use, though in practice, the authorities do not care to check whether these are satisfied, before it is invoked against anyone.

Siddharth Varadarajan, sharing his personal experience as a journalist, deplored the non-application of mind by the lower courts who invoke such legal provisions against anyone, be a journalist or a Union Minister (he was referring to registration of a case under S.153A IPC against Union Minister, Ms.Renuka Chowdhury, for referring to 'Talibanisation of Mangalore' in her reaction to the recent incidents there).

Justice J.S.Verma, one of the panelists, suggested there are legal remedies (civil) against wrong application of law, and an illegal prosecution can be challenged. Nandita Das, who shared her experiences with the Censor Board about her recent film, said we are becoming tolerant of intolerance, and we unwittingly give space to the so-called representatives of religions to speak on behalf of their co-religionists on the mainstream media. Even if there has been no conviction under S.295A, the process itself is the punishment, and this was a concern to all the panelists.

We, on this blog, have had an occasion to discuss the history and relevance of S.295A earlier. (This link takes you to the relevant posts on S.295A and this link takes you to the relevant High Court and Supreme Court judgments on S.295A IPC.)

Update: A detailed report on the event by Vivian Fernandes can be read on the FMP's site.