Thursday, April 30, 2009


Justice Arijit Pasayat of the Supreme Court is retiring on May 9, and has been one of the most active Judges in the history of Indian Supreme Court. Having been appointed on October 19, 2001, Justice Pasayat has so far delivered 2227 judgments (as on April 30, 2009). Only a comparison could reveal whether it is also the highest number of judgments to emanate from a single Judge so far. Tomorrow, he is delivering judgment in the most-awaited matter regarding vacation of stay on the trial of Gujarat carnage cases (NHRC vs. State of Gujarat) by disposing as many as 25 petitions at one go. Truly, his contribution to reducing the Supreme Court's docket in the last nine years is phenomenal. Justice Pasayat also happens to be one of the most controversial Judges, in terms of the intense debates that some of his judgments invited. Hopefully, he will write his memoirs to throw light on the judicial controversies that marked the Supreme Court during the last nine memorable years, and contribute to the legal scholarship in other ways. LAOT wishes him a long and productive life ahead on the eve of his retirement. It is hoped that some of us on this blog could assess his contribution dispassionately.

Tarunabh adds: In a rape and murder case decided this week, Justice Pasayat orders death penalty, but Justice Ganguly dissents. It will surely reopen the DP debate when the 3-judge bench looks at it. The judgments are here and here.

Did Supreme Court cross its lakshman rekha on elections?

Two unrelated cases before the Supreme Court have brought the Court under critical scrutiny recently, pointing to possible involvement in the ongoing electoral process. One is the symbol allotment for political parties by the Election Commission. As it was the first time four regional unrecognised parties sought common symbols for their candidates,(read the orders here and here) the E.C. was caught unawares, and groped for an answer. The case ought not to have reached the Supreme Court, and the E.C. unnecessarily subjected Article 329b of the Constitution to test. The result was that the Supreme Court snubbed the E.C. and directed it to allot common symbols as an interim measure to these parties. The inference, which I draw in this Business Line news analysis could have been avoided, if only the E.C. was pragmatic enough. How could a party like Praja Rajyam, contesting all the Lok Sabha and assembly seats for the first time in Andhra Pradesh, be allotted different free symbols for its candidates only because it is not recognised? If the result is that the Supreme Court had to violate its own lakshman rekha drawn in the Ponnuswami case in 1952 by exercising jurisdiction in election matters during the process of elections, the E.C. alone has to bear the blame, as the Court's non-intervention would have created an absurd situation for Praja Rajyam and for the electorate of Andhra Pradesh.

The other case before the Supreme Court, which led to the Court's direction to the Special Investigation Team to probe the complaint against the Gujarat Chief Minister has invited comment from several observers that it was ill-timed, and that as one columnist put it, it violated the spirit of Article 329(b). Another columnist found the timing of the judicial intervention mysterious. Both the views miss the point that the case was listed in the normal course before Court No.3 on April 27, and the Bench gave the direction too in the normal course, unmindful of the political implications. In fact, interpretations of implications suggest that if the BJP is likely to gain from the order in Gujarat, it is likely to lose elsewhere. Such interpretations are possible on almost every order of the Court, which has some bearing on politics. This is something that must be said in the Court's favour, that it did not consider the likely political fall-out in the ongoing elections. The nation must be grateful to the Court for giving the political class and the electorate an issue on a platter. After all, the widely prevalent grievance among many opinion makers, with which I disagree, is that this election lacks a central issue.

Tuesday, April 28, 2009

Supreme Court's concern to end shortage of drinking water

Well, one would be right to consider such a concern as being inconsistent with the aims of PIL, if she agreed with Justice Katju's previous formulation of this judicial strategy. But readers would be surprised to know that it is Justice Katju who has given this order and wants to continue to monitor its implementation, in line with his earlier order delivered on March 26, in order to ensure drinking water for everyone. It would have been better if Justice Katju added a paragraph in this recent order how he reconciles this with his previous Aravali judgment which led to a controversy about the limits of PIL. (For background, please read our earlier posts on this).

Gujarat carnage investigation: SIT's new mandate

The Supreme Court's direction to the Special Investigation Team to investigate Ahesan Jafri's complaint against the Gujarat Chief Minister and others has raised questions about the feasibility of prosecuting the head of a government for the pogrom. While a Chief Minister must be held vicariously liable for the failure of his Ministers and the officials to protect the lives and properties of citizens during mass violence, existence of additional evidence pointing to the Chief Minister's connivance at or active encouragement to the indifference of officials could be considered as serious enough. This Frontline article written by Dionne Bunsha in 2006 on Ahsan Jafri's original complaint throws light on certain facts. Her 2007 and 2008 articles follow up this story. Ahesan Jafri's FIR can be read here.. Some crucial and pertinent issues raised by her can be read here. The SIT itself was set up in 2008 by the Supreme Court through this order, which explains its rationale and mandate. The Gujarat High Court's judgment dismissing Ahesan's petition in 2007 can be read here.

1: Fali S.Nariman in his Tribune article today advises the Judiciary to defer hearing of cases with likely impact on voting trends till the elections are over. He suggests that the Supreme Court's direction will influence voting in Gujarat. He says he has no problem if the direction came two months earlier to, or later to the polls. I respectfully disagree. It is simplistic to suggest that the voter has a tendency not to be influenced by events which are two months old, but will be motivated to vote in a particular manner in response to events which are less than two months old. The Court must stick to its calendar uninfluenced by political events.
UPDATE 2: There is an impression sought to be created in certain sections of the media that the Supreme Court referred this case to the SIT perhaps to satisfy the petitioner, as the Bench was of the view that the SIT had already probed all complaints in the carnage cases. Please read this order of the Court issued on March 3, 2008 during the first hearing of this case, which explains why the Court thought it necessary to admit the petition and probe it further. The SIT was constituted subsequently on March 26, 2008.

Monday, April 27, 2009

Dr.Binayak Sen's quest for freedom

Siddharth Varadarajan's apt piece in The Hindu (Set Binayak Sen free now) pleading for his immediate release created the right atmosphere for the hearing of Dr.Binayak Sen's fresh bail application today in the Supreme Court before Justices D.K.Jain and R.M.Lodha (SLP (Crl...)No.6149/2009: Binayak Sen vs. State of Chhattisgarh). However, as Mr.Ram Jethmalani, who was to argue his case could not make an appearance in the Court today, the case has been adjourned to May 4. Dr.Sen's quest for freedom continues. Read this rare interview given recently to Vinay Sitapati ( with his recent photograph, which is equally rare). Follow this site, to know more about the campaign to free him.

Sunday, April 26, 2009

The case of the disenfranchised

During the past few days, our blog has discussed the issue of lack of voting rights for Indians temporarily residing abroad during the elections. Responses to the debate suggested that if those Indian voters who are non-officials residing abroad during the elections need to be provided facilities for voting, similar facilities be provided for migrants within India who would like to vote in those constituencies where they are originally registered. This report in The Hindu today (report by Vidya Venkat and photo by K.Pichumani)starkly brings out the plight of the migrant voters within the country, who stand disenfranchised precisely because they migrated in search of livelihood. The discussion that we had pointed out to the complexities involved in providing such facilities to a migrant voter to exercise his or her franchise. But are these complexities insurmountable for the Election Commission?

Addendum: Just to add how farcical our promise of universal free adult franchise is: The Prime Minister, who is ordinarily a resident and a voter in Assam, leaves New Delhi, where he works, to exercise his franchise in Guwahati; but similar luxury is denied to these migrant workers in Chennai. Clearly, some of the remedies suggested by Vidya's respondents are worth trying.

Saturday, April 25, 2009

Prevention of Torture Bill 2008, and transparent law-making

Several readers have enquired about the draft Prevention of Torture Bill 2008, mentioned in my article on impunity provisions. This blog discussed the possibility of bipartisan consensus on outlawing torture in the aftermath of the Pragya Thakur case here, and the connection between torture and confessions here. I still think that the Bill, if enacted, will join other platitudes unless we repeal impunity provisions.

My apologies for the bad quality of the text of the Torture Bill. It is the best my scanner could do, with unclear text to begin with. (Thanks to Maneesh Chhibber for sharing the document and to Venkatesan for sending me a hard copy by post.) One should not need to go through such trouble merely to get access to an important piece of draft legislation. This guest post on our blog dealt with problems in accessing legal material, and the possibilities under the Right to Information Act. This recent article also bemoans the secrecy surrounding law-making. Perhaps newspapers, which sometimes have privileged access to primary documents, should upload them on their websites. Of course, the long term solution must lie with the government living up to its obligations under s. 4 of the RTI Act.

Friday, April 24, 2009

Jindal Global Law School: Faculty Announced

The Jindal Global Law School has announced its faculty. This list is here. With law schools mushrooming in India, it may be useful, in due course, to examine faculty strenghts in different law schools. Currently, it seems that NUJS is doing extremely well on this front, having recruited both Sudhir Krishnaswamy and Shamnad Basheer. I noticed that Prabhash Ranjan, who wrote an article on WTO law in last week's EPW, also teaches at NUJS. Of course, several leading legal academics in India don't teach at law schools but are associated with other institutions. For instance, a number of scholars, including Pratap B. Mehta, Lavanya Rajamani and Shylashri Shankar, are currently at the Centre for Policy Research.

On Begging

The case of Ram Lakhan v State 137 (2007) DLT 173 on begging is a lesson in stupid laws and sensitive adjudication. Justice Badar Durrez Ahmad of the Delhi High Court deserves commendation. The discussion on the (lack of) differences between duress and necessity is fascinating:

... while in the case of exploitation and compulsion by the ring leaders of a 'begging racket', the "beggar" who begs under compulsion of fear for bodily harm from them would have the defense of duress, where the "beggar" takes to begging compelled by poverty and hunger, he would be entitled to invoke the defense of necessity. The common feature of both defenses being the element of involuntariness or, shall I say, lack of legitimate choices. It is the absence of legal alternatives that provides the defense of duress or necessity. This is aptly described by Dickson J giving the majority opinion of the Supreme Court of Canada in Perka v. The Queen [1984] 2 SCR 232 in the following manner:

Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or present the harm, without breaking the law? Was there a legal way out? I think this is what Bracton means when he lists "necessity" as a defense, providing the wrongful act was not "avoidable". The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of "necessity" and human instincts.

This mirrors the famous philosophical debate on liberty: Isaiah Berlin's claim that negative liberty and positive liberty are distinct concepts, whereas people like Joseph Raz, Amartya Sen and Martha Nussbaum insisting that true liberty must include positive liberty (i.e. not merely the absence of duress/coercion, but the ability to do things, or in Raz's words, having 'an adequate range of valuable options').

The discussion on begging as protected expression under Article 19(1)(a) is also fascinating. Usha Ramanathan discusses our jurisprudence around begging laws in this excellent piece. (Hat-tip t0 Siddhartha and Srinivasan)

Thursday, April 23, 2009

Group of International Lawyers Delhi

The Group of International Lawyers Delhi (GUILD) was recently created under the auspices of the Centre for Policy Research. For those interested it currently meets once a month to discuss timely issues in international law. More information can be found here.

Wednesday, April 22, 2009

No Criminals in Politics and Impunity Provisions

Namita and Nick, our co-bloggers, have recently drawn attention to the need to decriminalise politics. The readers have, rightly, raised questions about the propriety of barring those candidates who are in the criminal justice system (at the arrest atage, or charge-sheet stage, or cognizance stage, or trial stage etc), but not yet convicted. In our zeal to get 'good' politicians, let us not forget traditional liberties, especially the presumption of innocence. Niether Nick nor Namita have suggested we debar people still to be convicted, I am attacking a widepread sentiment rather than their posts---except to say that in calling for the 'people' to vote out criminal candidates, aren't we somehow suggesting that the people know who the criminals are even before the courts do? I think presumption-of-innocence-until-proven-guilty is a value not just for the courts, but for all of us to live by. Many well-meaning social movements, especially the women's movement and the dalit movement, have managed to put in place the most draconian of laws which should worry all civil-liberty enthusiasts. Recent pressures on lawyers to refuse to take Kasab's brief (and the media trial of Manu Sharma in the Jessica Lal case) are worrying reflections of our society's increasing frustration with civil liberties. In the long run, these quick-fixes are sure to dissappoint, and will come back to haunt us.

Perhaps a simpler, fairer solution is staring us in the face. In this article, I have argued for the repeal of impunity provisions like section 197, CrPC, which require prior governmental sanction before any court can take cognizance of a case against a public servant, and in non-corruption cases, even against a former public servant. This includes all parliamentarians, ministers, bureaucrats, police etc. These provisions have been used to deny prosecution, delay trials (permission given by one government is often withdrawn by the next, and we are back to square one).

Of course, this will not suffice. We still need an independent police, independent prosecution agencies and efficient courts. Even if impunity provisions are repealed, we will still be at the mercy of our slow judicial process, but at least one major obstacle on the path of justice will be removed. It will not decriminalise politics entirely, but it will be an important step towards that goal, and one that does not entail compromising with the presumption of innocence.

Incidentally, the latest edition of the Halsbury's Law Monthly (especially the Cover Story by Gopal Subramanium) deals with some of the wider issues concerning the criminal justice system, and may interest our readers. The issue also has a debate on the recent amendments to the CrPC, especially the arrest provisions, something I have defended previously on this blog.

The Rechristened "NUJS Journal of Law and Society": Call for Papers

Pursuant to Arun's post highlighting the resurgence of the NUJS law review, we have another "revamped" NUJS journal that is slated to hit the stands.

The NUJS Journal of Law & Society, formerly the Indian Juridical Review, promises a revamped look characterised by a focus on "law and society". It also promises "significant changes in the editorial process, thematic compass and publishing structure so as to make the scholarship more contemporary, focused and relevant".

Much like the NUJS law review which has significantly boosted the trend of open access legal scholarship in India (all the articles can be accessed freely on the website), one hopes that the NUJS Journal of Law and Society will follow the same path. Incidentally, it took the students all of Rs 5000 (or perhaps even less) to have the entire NUJS law review online!

For those of you interested in issues pertaining to law and society, this revamped law review is likely to prove a good resource in the coming years. Please join me in wishing them the very best of luck. Listed below is the call for papers:

NUJS Journal of Law and Society: Call for Papers

NUJS Journal of Law & Society is currently soliciting submissions for its inaugural issue due in September, 2009. The deadline for submissions for the 2009 issue is May 10, 2009. Please send in your submissions under the categories mentioned below. The submissions would go through a two-staged peer review process and edited by the student editorial board. For general queries relating to your submissions, see the ‘Note to Authors’ or kindly write to us at


NUJS Journal of Law & Society is a new, peer-reviewed and student-edited journal of interdisciplinary studies on law and society. It is based at and published from The National University of Juridical Sciences, Kolkata.

The journal seeks to present a dedicated forum of debate for work bearing upon the cultural, economic, political and social lives of law in India. Published annually in September, the journal solicits articles, notes and comments covering judicial decisions, legislative developments, empirical research on Indian legal system, public policy studies and theoretical analysis from related fields of inquiry. We welcome submissions from academics, practitioners, policymakers and students from within the legal community and have a strong preference for articles that are not descriptive but prescriptive and argumentatively focused. In addition to the above, we accept new ideas and perspectives under the ‘Essays’ category of the journal. Essays are reviewed for their potential contribution to existing scholarship but most significantly, to seek the possibility of a new approach to an old theme.

Submission Categories

The submissions may be made under the following categories –

• Notes: 5000 - 7000 words
• Articles: 10000 - 12000 words
• Essays: 2000 - 3000 words
• Legislative Briefs and Case Comments: 3000 - 4000 words.


The prescribed word limits are inclusive of footnotes and submissions are expected to strictly confirm to length policy and the guidelines listed below. Kindly go through them carefully before mailing your submissions. ‘Notes’ are short articles written by students and are expected to be well-sourced. They are generally characterized with an extensive use of footnotes. As a policy, NUJS Journal of Law & Society aims to publish no more than two student notes. Essays, case comments and legislative briefs can be submitted by anyone. We promptly acknowledge the receipt of submissions and a decision on publication takes around 8 weeks. The issue is out in print within 6 weeks of a decision to publish. Requests for expedited reviews can be forwarded to the Editorial Board when the submission is being considered for publication by other journals. Please mention the name of the journal for which your article is in consideration, one contact person in the Editorial Board of that journal and a date by which you expect our response.

Submission Guidelines

1. Contact Address: Electronic form of submissions should be mailed to

2. Deadline: The Deadline for submissions is May 10, 2009.

3. Covering Letter: All submissions must be accompanied with a covering letter, containing the name of the author, institutional affiliation, title and category of the submission and a contact address of the author, including the e-mail address. Submissions should be sent as MS word (.doc format) attachments with the title of the article as the file name.

4. Identification Details: The body of the submission must contain no identification of any kind, including the name and institutional affiliation of the author, which must be provided in the covering letter. This is to ensure an impartial review and a fair assessment of your contribution.

Style Guidelines

1. Form of Submission: Submissions must be in electronic form. All submissions must be word-processed, double-spaced in Times New Roman. Main text should be in font size 12 and footnotes in font size 10. All submissions must contain an abstract of not more than 250 words.

2. Title: The Journal does not recommend any specific guidelines regarding the titles and sub-titles. However, the main titles must be centred, typed in small capitals and emphasised in bold. The titles must be uniform, concise and descriptive.

3. Quotations: Quotations should be clearly indicated and it is vital that they are accurate. Double quotation marks should be inserted at the beginning and end of every quotation and where the quotation will run to more than forty words it should be typed as a separate paragraph and left-indented.

4. Foreign words: Foreign words not currently absorbed into the English language should be italicised, e.g., “inter alia”, “bona fide” etc.

5. References and Citations: The Rules of Citation are generally derived from The Bluebook, A Uniform System of Citation (18th Ed.)

Note 1: Please feel free to write to us for any additional queries that you might have about the theme or the structure of your submissions. Write to us at

Note 2: NUJS Journal of Law & Society was formerly the Indian Juridical Review and beginning with our year in office, we have decided to initiate significant changes in the editorial process, thematic compass and publishing structure of the journal to make the scholarship more contemporary, focused and relevant.

Decline in number of contesting Lok Sabha candidates with criminal records

Analysis by the Times of India indicates an approximately 30 per cent decline in the count of candidates with criminal records contesting the present Lok Sabha elections as compared to the statistics for the 2004 elections. While there may be many factors responsible for this decline, it is evident that civil society efforts such as the "No Criminals in Politics" and "Jaago Re" campaigns as well as the efforts of organisations like Association for Democratic Reforms and National Election Watch have played a significant role in mobilising public outrage regarding the criminal backgrounds of the people's representatives to put pressure on political parties not to field candidates with criminal records. This blog has previously discussed such civil society initiatives here. However, there is no scope for complacency because it is likely that at least some, if not a good number of our elected representatives this time around too will have criminal backgrounds. Civil society initiatives must not stop until we really achieve a Parliament and state legislatures with no criminals.

Tuesday, April 21, 2009

Exit poll of first phase of elections: broad trends

In pursuance of the Order passed by the Supreme Court on 19-01-2009, in writ petition ( C) No. 207 of 2004, the Election Commission issued Guidelines, on 17th February, 09, to be followed in the matter of publication/dissemination of results of opinion polls and exit polls in connection with the current elections to the Lok Sabha and State Legislative Assemblies. As per the guidelines, result of opinion/exit polls carried out at any time, cannot be published, publicized or disseminated in any manner, during the period starting from 48 hours before the hour fixed for conclusion of poll in the first phase of election and till the conclusion of poll in the last phase of election. The period referred to in the guidelines starts from 3 PM on the 14th April, 09 and will continue till the conclusion of poll in the last ( the fifth) phase of election.

The language of the E.C.'s above order appears to be causing some confusion. The phrase "cannot be published, publicized or disseminated in any manner" is difficult to comprehend. What if a person who has access to the results of the exit polls, conveys it by word of mouth, or even chooses to blog? Does this restriction apply only to actual projection of seats to be won by respective parties or even to projection of broad trends?

This blogger, who also happens to be a reputed columnist and a television commentator, gives us a glimpse of the broad trends projected by an exit poll on April 16. Read on, and quench your curiosity. The author of this blog apparently believes that the E.C.'s restriction does not apply to him, even while conceding that it would not be proper to divulge the actual seat tally projected by the exit poll.

Monday, April 20, 2009

Krishnaswamy on the National Law Universities

This op-ed by Sudhir Krishnaswamy (now a professor at NUJS) appeared in the Indian Express this weekend discussing the recent student strike at HNLU - a topic of a recent post on this blog. The article raised two points (among others) which from my vantage point I think bare reemphasizing -

(1) Get the bar councils out of the business of regulating legal education. The mandates bar councils impose in some states seem absurd, or at least poorly thought out. When LUMS in Lahore set up their law school (which I think may be the best run I've seen in South Asia) one of the first things they pushed for was to get the bar council to judge their students on a bar exam. This way the school had much more control over classes, how they monitored attendance, graded, etc. It wasn't there was no accountability or no input from the bar, but there wasn't such dominating influence in how a legal education had to be structured.

(2) It's the quality of the students who have made the National Law Universities and given them their reputation more than anything else. It's not the faculty that really draws students to these institutions now, but rather the promise they will be around other bright students and so a good reputation will attach with the degree when they graduate. As Sudhir hints in his piece this may mean Indian legal education is in for some instability the next few years. If other competitors move in like Jindal Global Law School that promise a higher level of faculty you can see top students moving to that institution or those like it. This sort of movement is likely healthy, but also creates confusion. Prospective students will start second-guessing what the "it" school is - what's on its way down, what's a passing fad, what will be considered the top tier schools in five years when they enter the job market, etc. This is not new to Indian legal education, but is likely to be amplified given current circumstances making it more difficult for prospective students to be confident in their choices.

Supreme Court makes law governing civil and criminal liability for destruction of public and private property

In another manifestation of the Supreme Court’s activist avatar as well as the trend of poorly written judgments, Justice Pasayat writing for the court in In re Destruction of Public and Private Properties v. State of Andhra Pradesh and Others, has issued a series of guidelines to “fill the [alleged] vacuum in the law” regarding destruction of public and private property. Taking a serious note of the large scale destruction of public and private properties in the course of agitations, bandhs, hartals etc., the court initiated suo motu proceedings in May 2007 and appointed two committees, one headed by retd. Justice KT Thomas and the other by Mr. Fali Nariman to submit recommendations for supplementing the law relating to this issue as contained in the Prevention of Destruction of the Public Property Act,1984 (“PDPP” or “the Act”). The Act criminalises the destruction of public property and provides for the imposition of sentences upto a period of five years for such destruction. Citing various precedents including Vishaka v. State of Rajasthan, AIR 1997 SC 3011 for the proposition that the “judiciary [under Article 32] not only can but [apparently] must in the exercise of its constitutional obligations step in” to fill a perceived legal vacuum, the court in its decision dated April 16, 2009, issued a series of guidelines seeking to (i) change the evidentiary requirements for proving the commission of an offence under the PDPP Act, (ii) empower the police to enable them to better perform their statutory duties under the Police Act, 1861 and the Criminal Procedure Code, 1973 and (iii) to create a special purpose vehicle for assessing and awarding damages in riot cases. I briefly summarise below the guidelines pertaining to the first two issues but do not discuss them in any further detail in this post.

1. The PDPP Act must be so amended as to incorporate a rebuttable presumption of guilt after the prosecution has established two facts, namely, (i) that those accused were the leaders or office bearers of the organisation which called for the direct actions and (ii) that public property has been damaged in or during or in the aftermath of such direct actions.
2. The Act must contain a provision that makes the leaders of the organisation, which calls for the direct action, guilty of abetment of the offence. A more detailed discussion of the Supreme Court's judgment on this point can be found here.
3. The Act must empower police officers to maintain a panel of local video operators in order to collect videographic evidence of the damage to public property, which evidence would be admissible in court pursuant to amendments to the Evidence Act, 1872.

The remainder of this post will focus on the court’s directions with respect to awarding damages in tort for destruction of public and private property. Justice Pasayat begins by stating the classic distinction between criminal and tort law, the purpose of the former being to protect the public interest and punish wrongdoers, while that of the latter being to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him. He then swiftly moves on to recognize the awarding of exemplary damages in tort law, whose evident purpose is to deter certain kinds of actions as illustrating the fact that the distinction between tort and criminal law is not as rigid and immutable as appears on first glance. Adopting the Nariman Committee’s recommendations that in cases of destruction of property due to rioting etc. while compensatory damages must be the rule, the court held that punitive damages could be awarded to punish instances of vandalism and rioting to act as a future deterrent. The court went on to issue detailed guidelines regarding the initiation of judicial proceedings in such cases, the imputation of liability to private parties and its apportionment between parties as well as the procedure for assessment and awarding of damages in such cases.

1. Wherever a mass destruction to property takes place due to protests etc., the High Court or, where more than one state is involved, the Supreme Court can initiate suo motu proceedings to investigate the damage caused and to award compensation
2. In each case, the court shall appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability.
3. The Claims Commissioner may seek court instructions to summon video or other recordings from private and public sources to pinpoint thedamage and establish nexus with the perpetrators of the damage.
4. The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established. The court will apportion liability between the actual perpetrators of the crime as well as organisers of the event giving rise to liability.
5. Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.
6. Damages shall be assessed for causing destruction to public and private property as well as for causing injury or death to a person or persons and finally for costs of preventive actions by the police and the other authorities.

This blog has discussed the merits of civil vs. criminal liability for perpetrators of violence resulting in loss of life and destruction of property here and here. I believe and have previously written about the need for both civil and criminal liability for such actions. As Tarunabh succinctly puts it here, those who use violence for furthering their ends in defiance of constitutional values must pay up.

However, the court in its decision not only overreaches its authority in its so called attempt to supplement existing law, it also fails to provide any basis for its authority to issue directions making private persons liable for compensatory and punitive damages for loss of lives and destruction of private property. In providing a mechanism for awarding damages for destruction of both public and private property, the court goes beyond the provisions of the PDPP Act, which imposes criminal liability only for the destruction of public property, defined as property which is owned by, or in possession of or under the control of the government of India. Therefore, insofar as the court’s directions seek to make private persons/organizations liable for destruction of private property in cases of bandhs/riots, it cannot automatically be assumed that the authority to issue such directions emanates from Article 32 of the Constitution.

Of course, various High Courts in the past have made governments liable for tort damages in riot cases. In R. Gandhi v. Union of India (1989), the Madras High Court, in M/s Inderpuri General Stores v. Union of India (1992), the Jammu and Kashmir High Court and in Manjit Singh Sawhney v. Union of India (2005), the Delhi High Court ordered respective state and union governments to pay compensation to the victims of the anti-Sikh riots. The state's liability was grounded on the inaction by state offcials in protecting life and property. These decisions are justified under the constitutional torts jurisprudence of the court, which provides for the use of a tort law remedy to make governments liable for violations of fundamental rights in constitutional law.

However, the current decision makes individual perpetrators tortiously liable under the public law mechanism of a writ remedy that is available to enforce fundamental rights, most of which are available only against the state. Ordinarily, an individual can bring a private law tort suit against the perpetrators of the riots but then he would be subject to the rules of evidence and civil procedure applicable under an ordinary civil suit. By the mechanism outlined by the court individuals can essentially bring tort claims for damages by filing writ petitions against private parties responsible for calling the hartal/bandh during which the destruction of private property took place. The availability of such a remedy is premised on the existence of a norm of horizontal application of rights between private parties without any discussion as to whether there is textual support for such a norm. While the court's intention in introducing a mechanism that makes those who resort to violence accountable for their actions is laudable, the method by which the court goes about providing for the same is problematic. The court’s selective and ad hoc approach to horizontal application of fundamental rights has led to inconsistent interpretations of constitutional rights norms resulting in a muddled and messy fundamental rights jurisprudence. Thus, after this decision, while private parties may be constitutionally liable to individuals for violence to life and property during riots and bandhs, they may continue to discriminate on grounds of caste and religion in selling them or renting out property. The need of the hour is for Parliament to enact a statute governing civil liability in cases of destruction of public and private property to substitute ad hoc judicial lawmaking in this area.

Sunday, April 19, 2009

Expose of activism and the truth

A few commentators including Pratap Bhanu Mehta have tried to expose the activists working among the Gujarat carnage victims for "fabricating evidence". But the rebuttal by the activists, especially by Teesta Setalwad, was completely ignored by the media. We are presenting both, in order to let our readers judge for themselves, the truth behind this expose. Interestingly both PBM's comment, and Teesta's rebuttal appeared on the same day, April 15th, and it is not clear whether PBM's piece was influenced by what Teesta describes as distorted reporting. We will be happy to publish (as a guest post)any rejoinder from PBM, who is one of our valued readers.

Readers will find two more posts published on April 14 here and here useful to understand the controversy. TOI's controversial report can be read here. ET's story is available here.

Pratap Bhanu Mehta replies:

1. My intention was not to expose Teesta. I have no competence and desire to do so. I was just stuck by the fact that this seemed to be an important story, carried by a "credible" newspaper, the Economic Times, followed by TOI and a slightly different version by IBN.

2. I tried to verify whether TOI indeed had the SIT in question and was led to believe they did. I know we are sceptical of news reports, but I assumed that ET would have at least some minimal standards of accuracy in reporting.

3.That seemed to me sufficient to warrant a blog comment. Now if it turns out that the ET and TOI "lied" I will be relieved and distraught in different ways. I will be relieved that charges against Teesta are untrue. I will be distraught because it will raise serious questions about whom one can trust in matters of reportage. It will confirm, in a different way, the deep crisis of credibility and adjudication facing Indian society. After all, it was the same reporters and newspapers and editors one relied on for reporting on the horrendous carnage in Gujarat. And once the credibility of all these institutions of reporting declines, everyone will feel entitled to believe what they want.

4. I also regret that many responses seem to bring out the latent crisis in Indian democracy. So many people jumped to the unwarranted conclusion that if some of what is alleged to be said against Teesta is true, it automatically exonerates the Gujarat government. This is far from being the case.

Wednesday, April 15, 2009

Voting Rights for Indians Living Abroad

Since many of our readers are Indians living abroad I thought there would be interest in Abhinav Chandrachud's op-ed in today's Hindu, "Overseas Citizens: A Horse with No Name", in which he calls for giving voting rights to Indians residing in foreign countries. As he points out, government officers are entitled to vote while living abroad, but not those Indians who are otherwise working or studying outside India.

I noticed this election cycle there seems to be a new group of younger candidates that have spent time studying outside the country, returned and made a name for themselves, and are now running for political office. With so many talented Indians working and studying abroad right now giving them the right to vote may help entice them to stay politically active and think of themselves as invested in their country's future in a different way. This could pay large dividends down the road even if just on the margins.

Does anyone out there have a good understanding of the constitutionality of not allowing Indians living outside the country to vote, especially if government officials outside the country can vote? This is not my area, but I'd like to hear others who do know more speak to whether they think there is any sort of legal case here.

Monday, April 13, 2009

Denial of reservations in entrance examination

The Supreme court has justified in this judgment the denial of reservations by the Andhra Pradesh Public Service Commission in the entrance examination to fill up state civil service posts. Mail Today in this editorial (A fair and just view)defends the judgment saying it will have far-reaching consequences because most public service commissions in States reduce the cut-off marks for reserved category applicants in the entrance or preliminary examinations, so as to ultimately find sufficient candidates to fill the vacant posts under the reserved quota.

There are a few unusual features in this case. While it is generally the Governments which are in favour of reservations, in this case, the Government has justified the need to deny quota to the reserved categories in the preliminary examination, in order to maintain efficiency under Article 335. Another interesting aspect is that P.P.Rao, who had argued against reservations in the Ashoka Kumar Thakur case, chose to defend the respondents, who were aggrieved by the APPSC's decision to deny quota, and further relaxation of cut-off marks for reserved category candidates at the preliminary examinations.

P.P.Rao argued that judging of the merit of the candidates having regard to the provisions of Article 335 of the Constitution of India per se should not allow the State and the Commission to stop all the candidates at the first gate and then prevent them from appearing at the main examination as thereby constitutional scheme to provide reservation would be frustrated to a great extent. He also suggested that the means to achieve the constitutional object and the goals should not be defeated by inserting procedural provisions as a result whereof what is being given by one hand should not be permitted to be taken away by the other.

The Court, however, rejected this argument, and held: "Concededly, no citizen of India can claim reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued."

It is surprising that in this election season, the political class seems to have completely missed the import of this significant judgment from the Supreme Court

Sunday, April 12, 2009

Panel discussion on media jingoism

The Foundation for Media Professionals is organising a panel discussion on a serious journalistic issue: "Is Media Jingoism Fanning Indo-Pak tensions?". This debate will held in the main auditorium of India International Centre, New Delhi, on Wednesday, April 15 from 10 am to 1 pm followed by lunch.

Panelists include five journalists from Pakistan: Beena Sarwar, Muniba Kamal, Rahimullah Yusufzai, Saeed Minhas and Nirupama Subramanian. The Indian panelists are Arundhati Roy, Swapan Dasgupta, QWS Naqvi, Bharat Bhushan and Amit Baruah.

Saturday, April 11, 2009

Free Speech News

1. Regulation of the Media: Interesting, and dare I say, worrying developments on the broadcasting media regulation front, but first the background: Some time ago, the government proposed a regulatory mechanism in the Broadcasting Services Regulation Bill, which was strongly opposed by all media bodies. This blog debated the issue here, here, here and here. As a response to the proposals, it was decided that a self-regulatory body called the News Broadcasters' Association will be set up to address the genuine grievances against the media, without having the fear of an overbearing state. The body was chaired by former Supreme Court judge and former Chairperson of the National Human Rights Commission Justice JS Verma. The NBA, in its first major order, fined India TV for “deceptively dubbing” an interview in Hindi, a language the interviewee does not know or speak. But before one could even celebrate the success of the self-regulatory mechanism, India TV has alleged bias and pulled out of the Association. I don't know the facts of the case in any detail, but if the NBA is to fail, the government will get a (possibly legitimate) excuse to intervene.

2. Combating Defamation of Religion: The UN Human Rights Committee has recently passed a resolution titled Combating Defamation of Religion, calling for steps to combat defamation of religion as a human rights issue. This is a worrying development on free speech, on which one may have a nuanced position on hate speech against groups, but it was clear that criticising any beliefs (including religious beliefs) was protected (except for non-content based law and order reasons).

India, which normally votes along with the Council's majority of developing nations, abstained in protest. India's Ambassador Gopinathan Achamkulangare said the resolution "inappropriately" linked religious criticism to racism. While one understands India's stand, why did it choose to abstain when it could have voted against the resolution? The reason is apparent when one looks at the voting figures:

The Resolution was adopted by a vote of 23 to 11, with 13 abstentions. The voting was as follows:
In favour: Angola, Azerbaijan, Bahrain, Bangladesh, Bolivia, Cameroon, China, Cuba, Djibouti, Egypt, Gabon, Indonesia, Jordan, Malaysia, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa;
Against: Canada, Chile, France, Germany, Italy, Netherlands, Slovakia, Slovenia, Switzerland, Ukraine, United Kingdom of Great Britain and Northern Ireland;
Abstaining: Argentina, Brazil, Bosnia and Herzegovina, Burkina Faso, Ghana, India, Japan, Madagascar, Mauritius, Mexico, Republic of Korea, Uruguay, Zambia.

Almost all the countries which voted against are first world countries, while those who abstained appear to be mostly developing countries who were uncomfortable with the Resolution but did not want to vote against their third-world allies. The resolution would have been defeated if most of the abstaining countries had voted against it. While one can see the arguments for realpolitik in international affairs, if my analysis is correct, it is rather sad that voting block loyalties decide the outcomes of human rights issues.

It is rare for Foreign Ministers in India to be accountable for how the country votes in international fora (except in high profile spaces like the WTO). India's record in joining international human rights enforcement mechanisms (various Protocols, the Rome Statute for the International Criminal Court etc.) is abysmal. Indian media largely fails to even report on international law issues, let alone ask uncomfortable questions about our decisions in these fora.

Former Chief Justice Verma on the CBI

"But if everything depends on the pleasure of the prosecutor, who can enforce the law or not, then what is the use of the courts?" - Nekhludoff in Tolstoy's The Awakening

This election cylce has been marked by increased civil society efforts to try to get voters to rid politics of corrupt and criminal politicians. The No Criminals campaign is a prime example of such efforts.

The problem though is not just that politicians with a criminal background keep getting voted into office or put on their party's slate, but that prosecution of suspected criminality has often been lackluster by government authorities.

Former Chief Justice Verma in an op-ed in today's Indian Express takes on this issue of seeming political interference in the CBI's work calling for increased scrutiny of the agency and a revisiting of its statutory role. Admitting that the decision he penned in the Hawala case, granting political insulation to the CBI, has not had the desired effect he pleads for a rethink on the CBI.

Given the widespread perception of corruption and criminality in politics his concerns seem pressing and worth more attention than I've seen them been given in the media. It is not just the CBI to blame here - many of the criminal cases that do actually come against politicians languish in the courts for years with judges seemingly not particularly eager to stick their necks out and prioritize them.

The lack of independent prosecutors, and incentives for these prosecutors to bring cases, is also a problem not just in the CBI, but throughout the Indian government and its various prosecuting authorities (administrative and criminal). Students of the law often focus too much on reading cases without thinking about how cases are generated (or not generated) and the politics and economy behind this. I hope this op-ed by former Chief Justice Verma will refocus attention and energy on recalibrating the dynamics within these investigatory and prosecutorial agencies.

Such a task is not without potential pitfalls. Looking at the recent experience in Bangladesh with the politically motivated targeting of politicians by its "independent" Anti-Corruption Commission (albeit during their recent Emergency) should give one some pause for reflection. The excerpt in the conversation before the Tolstoy passage I quoted above is:

"We used to think that the prosecuting officers - the court officers generally - are a kind of new, liberal men. And so they were at one time, but not now. The only thing that concerns these officers is to draw their salaries on the 20th of every month. Their principles begin and end with their desire to get more. They will arrest, try and convict anybody. I am always telling these court officers that I never look upon them without gratitude," continued the lawyer, "because it is due to their kindness that I, you and all of us are not in jail. To deprive any one of us of all civil rights and send him to Siberia is the easiest thing imaginable."

One could argue that having an under-zealous prosecutorial authority may be better than having an over-zealous one if you don't feel you can control the motivations by which it acts. I hope though that India has reached a period where its democratic system is robust enough to both create and control a strong independent anti-corruption agency.

Chidambaram's significant statement on Death Penalty: Are we in for de facto abolition?

[The Home Minister, P.Chidambaram's statement hinting at 'whole life' sentences as alternative to death penalty opens up several possibilities. Bikram, a researcher on death penalty issues, discusses some of these in this post]

By Guest Blogger: Bikram Jeet Batra

Although there have been the odd references to 'whole life' sentences even before the past decade, the first time it was actually imposed by the Supreme Court was in Subhash Chander [(2001) 4 SCC 458] by Justices K.T. Thomas & R.P. Sethi. Subsequently a number of judgments of the Supreme Court included similar directions that the executive would not have the power to remit or commute the sentence in that particular case. The constitutionality of such a restriction on executive powers has, however, been challenged by a review petition in one such case – this is presently being heard in the Supreme Court.

On its part, the UPA Government too has shown interest in ‘whole life’ sentences in the past. There were murmurs (probably selective leaks) in 2005 of MHA proposals to introduce ‘whole life’ as a replacement for the death penalty. See here for a discussion around that time. When the death sentence of Kheraj Ram was commuted by the President in 2006, the MHA ensured that he would serve a ‘whole life’ sentence. Chidambaram's reference is however the first high-level confirmation that such a proposal is being seriously considered by the Government and also that the proposal includes abolishing the death penalty. The Supreme Court’s Swami Shraddhananda judgment (2008) too envisages a similar eventuality (although it doesn’t refer to abolition).

I believe the Government is well aware of the fact that delay in disposal will eventually lead to commutation by the Supreme Court and is in fact hoping (planning?) for such an eventuality – they can then take cover behind the Court! Here’s what I think is likely to happen. Sooner or later some of the prisoners on death row will plead ‘delay-Triveniben-unconstitutionality’ in a writ in the Supreme Court. The Court will commute the sentences but recommend/direct (depending on how the ongoing constitutionality challenge in the SC goes) that the prisoner serve a ‘whole life’ sentence. Given that the Government has already stated in Parliament that mercy petitions take 6-7 years to process, this will mean the de-facto end of the death penalty in India. If the Supreme Court was to go the whole hog and abolish capital punishment given this context (highly unlikely) it would be ideal for the UPA government. If the court throws in sufficiently strong statements and obiters and the political environment is conducive, the Government may even be tempted to abolish through legislation. If not, then DP will remain in the statute books till the Congress has the numerical strength to deal with the domestic implications of abolition.

A couple of things to consider though: what happens if Justice Pasayat or other judge(s) with similar views on the death penalty sit on the bench in the first ‘delay-Triveniben’ petition? They’re unlikely to play ball with the above and it could arguably lead to the Supreme Court laying down a time-limit for disposals. This wasn’t done in the 1980s but the Supreme Court of that time was far more cautious of taking on the Government. All bets are off now. The other obvious factor is the upcoming elections – the BJP is unlikely to agree with Chidambaran’s statement. On the other hand, if the BJP does form the next government, we might be heading for resumed executions. In that case the last word will belong to President Pratibha Patil who can continue the present hiatus on executions till her term expires (irrespective of who is in power) by simply continuing to not dispose the mercy petitions pending before her.

Friday, April 10, 2009

Home Minister's interview: Questions on death penalty

The Home Minister P.Chidambaram's interview to The Hindu today has dealt with some key questions on death penalty. One is the Minister's claim that Afzal Guru's mercy petition will be considered in chronological order, as his petition has been listed as No.22 in that order.

Bikram Jeet Batra, who has been researching this issue, says:
"I have recently heard of this chronology argument - Congress started it a few months ago, I suspect, as a counter to the BJP's attacks on Afzal... seems quite fair although there is no such 'requirement' in law or policy - at best it could be said to be a practice/norm within the MHA."

But I am more concerned about the other part of Minister's reply, wherein he says, in his view, remaining on death row is more severe punishment than suffering execution. Is the Government deliberately pursuing this "more severe punishment" by delaying a decision on the mercy petitions? Such a course would be completely unconstitutional as it is clear from the Supreme court's judgment in Triveniben case.

His reply to the last question is equally debatable. One could understand if he had said that fixing time limit for deciding mercy petitions was not feasible, and was not envisaged even in Triveniben judgment. But linking this with what he claims as the 'larger issue' that death penalty itself be replaced with life sentence with parole is very puzzling. When did the Government begin to think on these lines? Has the Government initiated a debate on the merits or otherwise of this alternative? Or is the Government intending to pursue this alternative policy by default, without calling it so publicly, by not taking any decision at all on the pending mercy petitions?

Wednesday, April 08, 2009

Debating Basic Structure Doctrine

Sudhir Krishnaswamy's recently published book, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine is an important milestone in our understanding of the BSD, ever since it was formulated by the Judiciary. We are glad to make our blog space available to what promises to be an interesting debate between Senior Advocate, Supreme Court,Raju Ramachandran, whose critique of BSD Sudhir deals with in his book, and the author himself. The debate begins:

Raju Ramachandran

The Krishnaswamy thesis….a reaction,not yet a critique….

At the outset, I must apologise to Venkatesan for the delay in responding to his request to comment on Sudhir Krishnaswamy's recent work on the basic structure doctrine. I wanted to read it in a continuous sitting. The book repays study. Sudhir has enriched the debate. I will soon be having the privilege of engaging with him at the Constitutional Law debate at NALSAR, Hyderabad. I have also been asked by NALSAR to review his book, with the full knowledge of my own stated position, and will therefore not be using this forum to pen a critique. My immediate reactions here, will of course lay the basis for that future exercise.

Apart from questioning the theory of parliamentary sovereignty, Krishnaswamy questions the representative character of Parliament. I agree with him that the “first past the post system” is seriously flawed. I have argued elsewhere that the present system does not make Parliament represent the will of the people. But, as I have again argued elsewhere, the basic structure doctrine prevents us from switching over to a better system. It is not just the Westminster model, but also the “first past the post system” which are the results of conscious and informed choices made by the Founding Fathers after considering other alternatives. The sanctioned building plan, the radiations and the vastu that emanate from the structure (the “multi-provisional implications”) prevent us from remedying the situation.

Again, Krishnaswamy does not find the judiciary to be all that unrepresentative. Independence of the judiciary is part of the basic structure. And to preserve that, judges must appoint judges. Consultation must mean concurrence. Any hopes still left for a “representative” judiciary?

The people are sovereign, no doubt. Krishnaswamy also concedes that. The court does not deny the power of the people to change the constitution, he says. But how? The Constitution does not provide for a referendum. The basic structure doctrine will come in the way of the Constitution being amended to provide for a referendum. An extra constitutional referendum will remain that: extra constitutional. We can have a popular revolution to impose a brand-new Constitution on the country. And we can then borrow from either of the two delightful doctrines evolved by Pakistan's Supreme Court in the course of that country's troubled journey: the doctrine of “revolutionary legality” and the doctrine of “necessity”. Whither constitutionalism?

Sudhir Krishnaswamy
May I first thank Raju Ramachandran for responding to the book and Venkatesan for giving me this opportunity to add a few words to the many words published in the book!

In this post I will examine some of the tensions that Raju Ramachandran highlights:

1. Is Parliament or the Judiciary more representative in character? I take it that the reason this question is relevant is that the answer to this question has a bearing on who has a legitimate basis to alter constitutional fundamentals. I’ve argued that legitimacy of institutional decision making does not arise solely out of its representative character. So even an ideally representative institution may make illegitimate decisions and a non-representative institution may make legitimate decisions. The converse is possible too. Hence, for the argument that the basic structure doctrine is legitimate to succeed I do not need to show that the Judiciary is more representative than Parliament in any sense of the term.

2. Can we change the First Past the Post election process or the process of appointment of judges? A significant part of the argument in the book is to show that a legitimate and defensible version of the basic structure doctrine must operate as a check on those forms of state action that ‘damage or destroy’ a ‘basic feature of the constitution’. As the standard of constitutional injury is exceptionally high (damage or destroy : erasure ) and the basic features are abstract constitutional principles which admit of many conceptions, the effect of basic structure review is not to bar all forms of constitutional change. For example, in Kuldip Nayar the court allowed an amendment to statutes which changed the voting process (secret vs open ballots) and the domicile rules (State vs India) for the Rajya Sabha elections. Hence, state action which alter the election to the Lok Sabha and appointment to the Judiciary which does not efface constitutional values should survive basic structure review.

3. How do we change basic features of the constitution? As neither the court nor the constitution outlines a process of changing basic features of the constitution, it seems that such a process must have an extra-constitutional provenance. To an extent this claim is accurate: it highlights the borderlines between the legitimacy bestowed by constitutional law and the legitimacy bestowed by political morality. Where political action seeks to alter the core constitutional principles it is unlikely to rely on that very constitution to buttress its claims. Such revolutionary politics will claim legitimacy from the political values it seeks to advance and this legitimacy claim will have to be assessed against abstract political and moral values. Even though such political and moral values go beyond the constitutional framework, there is no reason to suggest that the court may have no role. In cases of constitutional crisis such as in the Quebec Secession cases or the Pakistan coup cases, the court continues to play the role of being an arbiter of the legitimacy of processes of radical constitutional change. As Raju Ramachandran rightly points out, the Pakistan court has been radical enough to assert a jurisdiction at times of constitutional crisis, but unfortunately has not exercised that jurisdiction as robustly as some of us would have liked. Nevertheless, these examples of radical constitutional change show us that while constitution amending power may not have fully domesticated political revolution, it is not necessary to assume that such revolutionary politics is not subject to legitimacy constraints imposed by the judiciary or other political actors.

Tuesday, April 07, 2009

The Varun controversy: Could the E.C. have done more?

The use of National Security Act against Varun Gandhi by the Uttar Pradesh Government has been criticised even by those who defended the E.C.'s strictures against him, for his hate speech. On the contrary, there are those who feel that the NSA's use is justified, in view of the explosive situation that his speech has led to. I would like to reserve my comments, especially because the Supreme Court is seized of the matter.

But should the E.C. have done more on his matter? Does it have the powers? When I discussed the text of the E.C.'s March 22 order on Varun Gandhi with Mr.Shanti Bhushan, he was more convinced than me that the E.C. ought to take further steps, as the BJP refuses to abide by its order. More important, Mr.Shanti Bhushan views the March 22 order as both an advisory and a binding directive. And he also believes that Section 29A of RPA empowers the E.C. to cancel the registration of political parties, if they blatantly violate the requirements of registration. Read my story on this and my interview with him here and here. My story includes a brief response to my query on E.C.'s powers from the Chief Election Commissioner. Needless to say, the CEC Mr.N.Gopalaswami disagrees with our understanding of the Order.

Ethics in advertising

One of our regular readers, Mr.Abi has sent this note (and a query) for us. I wonder if any of us can answer the query.

I wish to bring to your attention, the issue surrounding the recent IIT coaching centre ads that mention, prominently, that ""the director of IIT Bombay, deans of IIT and 30 professors of IIT Bombay have entrusted us with the responsibility of coaching their children for IIT-JEE". IIT-B has taken strong exception to the use of its name in an ad that appears to imply an institutional endorsement; it's threatening legal action. Here's a ToI report on the same issue.

I am wondering what the law says. Does the act of writing an appreciative letter -- as a parent, not as an official representative of an institution -- allow a coaching centre to use the institution's name? I can't imagine a coaching centre so casually using the name of N.R. Narayan Murthy or Mukesh Ambani in one of its ads -- but this view is based on a perception of who has more power, rather than a legal judgement.

So, does IIT-B really have a strong legal case here? If so, what would be its argument?

Sunday, April 05, 2009

An Indian to head the IMF?

Simon Johnson's NY Times column on Friday claimed that during the recent G-20 meeting a deal was struck by the United States with the Europeans that the next IMF chief would not come from Europe, as is the tradition, but in an open and competitive manner. Johnson interprets this as code that the next director will come from an emerging power like Brazil or India. Johnson should be in a position to know as he was recently the Chief Economist at the IMF.

Johnson goes on to write that the United States is also going to open up the selection process for the next President of the World Bank. If true, these changes could mark the beginning of a rather dramatic shift in our institutions of global economic governance. Now, much of this could be interpreted as window dressing, as I think some of the motivation in this proposal is to restore credibility and political legitimacy in these institutions at a time when they (or something like them) are seen as needed to face the financial crisis without changing (or changing too much) the disproportionate voting power Europe and the United States retains within them. Still, this change would be beyond symbolic. These new chiefs would have a lot of power individually and their presence would add greater weight to and an insider advocate for broader reforms.

In the wake of the financial crisis, there is a clear opportunity for these institutions to be remade in the next couple years. However, countries like India, and perhaps even more importantly civil society and academics within them, need a clear vision of what they want these institutions to look like and how they will function in the future. So far, I haven't heard much on this front in India - although admittedly this isn't my field and I would appreciate anyone who could point me/us towards useful links.

For those interested Simon Johnson is part of a blog, the Baseline Scenario, that has a number of good posts on the recent financial crisis (albeit from an American perspective).

HNLU in trouble?

An article ('Its own course') in the current issue of Outlook discusses the present situation at the Hidayatullah National Law University (HNLU), Raipur where the student community is on an indefinite strike calling for the resignation of the Vice-Chancellor Prof. (Dr.) M.K. Srivastava. According to a website which has been set up - - the Vice-Chancellor has issued an indefinite shutdown of the University, and electricity and water has been cut to the hostels. I am not aware of any further developments. The HNLU situation is certainly a serious one, and at a time when law schools seem to mushrooming all over the country (for instance, the recent National Law University, Delhi and the upcoming Jindal Global Law School, Haryana), this may be a timely reminder that we need to not only build new institutions but also to sustain them.

Fraternity in the Constitution: Cultural Policing in Dakshina Kannada

A recent report by the PUCL-Karnataka on 'Cultural Policing in Dakshina Kannada: Vigilante Attacks on Women and Minorities 2008-9' released in March 2009 fills in the gaps on the cultural policing debate by providing valuable evidence that led upto the Ram Sene pub attack in Mangalore, and its aftermath, by locating it in a wider politico-cultural context. This blog has discussed the issue previously in the following two respects:

1. One of us had taken exception to the media referring to the incidents as 'moral policing'. The Report rightly uses the term 'cultural policing' rather than moral policing. Cultural policing essentialises the cultural practices of a particular group as the aspirational culture of a place and imposes it on everyone else. The Report says that 'The aim of cultural policing is to produce a form of social apartheid where the various communities become self-enclosed structures with inter-community social interaction being actively discouraged.' (p 2)

2. Another post on this blog had said that progressive movement should take mode of protests and their efficacy seriously, in light of the 'pink chaddi campaign' to oppose the attacks. Chapter V of the Report makes an interesting read in this regard.

Our readers would find Chapter IV of the Report titled Cultural Policing leading to Social Apartheid: Violation of the Constitutional Order' particularly interesting. This chapter conceptualizes cultural policing as a form of social apartheid which attacks the idea of fraternity in the Indian Constitution:

Dr. Ambedkar recognized how difficult, yet important, the principle of fraternity was. As he put it, “Fraternity means a sense of common brotherhood of all Indians—if Indians are seen as being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve.’ He goes on to underline the centrality of fraternity by noting that that ‘ Without fraternity, equality and liberty will be no deeper than a coat of paint.”

Cultural policing, in its insistence that communities should not interact with each other and in its attempts to punish all those who try to live out the meaning of the Preamble’s promise of ‘fraternity’, is a fundamental attack on the very Constitutional order. The promise of fraternity held out in the Preamble is what is contested at its very roots by cultural policing. What cultural policing wants to produce are monolithic self-enclosed communities with no form of social interaction between them. It is antithetical to the idea of ‘We, the people of India’ and insists that India is no more one nation, but rather a conglomeration of separate peoples. (p 40)

The chapter then goes on to outline the various rights within the fundamental rights framework (right to form intimate association, right to freedom of speech and expression, right against discrimination, and the right to education) as providing the content to the preambular idea of fraternity.

As Sudhir Krishnaswamy puts it, fraternity is perhaps the least talked-about ideal in the Preamble to the Constitution. With its roots in the French Revolution, the importance of fraternity (and related notions of solidarity, cohesion and social inclusion) is receiving increasing academic attention in the English-speaking world. One of the most notable legal treatments of the idea is by Hugh Collins in two articles: (i) 'Discrimination, Equality and Social Inclusion' 66 (1) Modern Law Review 2003 (16), and (ii) 'Social Inclusion: A Better Approach to Equality Issues?' 14 Transnational Law and Contemporary Problems (2004-5) 897.

The Report must be commended for highlighting this oft-forgetten pillar of our constitutional framework, and may be seen as the beginning of civil society, academic (and hopefully, judicial) conversations on fraternity.

Finally, certain specific legal strategies outlined in Chapter VI will also be of interest to some readers.

CJI defends Cr.P.C. amendments

In the 10th Kohli Memorial Lecture on 'Criminal Justice System - growing responsibilities in light of contemporary challenges', delivered on 2 April 2009, the Chief Justice of India defended the recent amendments to the Code of Criminal Procedure thus:

The legislative intent behind giving this discretionary power to the police is to reduce the high incidence of arbitrary and unnecessary arrests that take place in our criminal justice system. Some critics of this proposed change have argued that the deterrent value of penal provisions will be weakened since arrests will not be made in cases where the suspected persons use their money or muscle-power.
This criticism is unfounded because the proposed change does not take away the power to arrest in its entirety. Instead it requires arrests to be made in a reasonable and proportionate manner. The Investigating Officer (I.O.) is required to record reasons in writing for making an arrest, thereby creating a reliable basis for subsequent judicial scrutiny. In instances of exigency, such reasons can of course be recorded after the actual act of arrest. Such a requirement is in conformity with ‘due process’ norms and it will create a measure of accountability in police behaviour apart from providing material for consideration during bail proceedings. Furthermore an Investigating Officer is also to be given the power to issue a ‘notice of arrest’ to the person sought to be apprehended. To my mind, these changes proposed to the law of arrest are well-intentioned and are being unfairly criticised by some.

I have also supported these amendments in this article and previously on this blog. SR Sankaran also offers his support for the amendments in this article in the EPW.

Saturday, April 04, 2009

Beards, Burqas, and Bias: Search for clarity

Shamnad’s and my posts have elicited quite a few comments, which explain (and also fail to explain) some facets of Indian secularism. Here, I wish to confine myself to some of the seemingly intractable issues, which our discussion has led to so far.

1. Shamnad’s major problem arises from the fact that he believes that the school was quite correct in seeking to impose uniformity in facial appearance on the students, by restricting the action of growing beards. Here, I find that he suffers from a major inconsistency. Does he accept that growing beard is a practice and a belief genuinely and conscientiously held by the Muslims? Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject,of course, to the
inhibitions contained therein.

The anguish expressed by Shamnad and many Muslims over Justice Katju’s observations- even when they agree that the school may be legally correct in imposing such a rule on Salim – shows that growing beard is a belief genuinely and conscientiously held by them, and equating it with Talibanisation is nothing but an insult to Islam.

In her column in HT today, Burkha Dutt quotes Rahul Singh to suggest that turban is much more central to the religious identity of Sikhs than the beard is to the identity of Muslims. She admits that she was confused on this issue. She and Rahul Singh only need to read the SC judgment in the Bijoe Emmanuel case.

The test for Article 25(1) protection is whether a belief is genuinely and conscientiously held. It need not be central to the religious identity of a community, in the sense many people actually practice it. Rahul Singh, in Burkha Dutt’s programme The Buck Stops Here was actually challenging a Muslim cleric whether all the Muslim rulers in the world grew beard. If the answer is negative, then he would suggest it is not central to Islam. Legally, Rahul Singh is wrong, because the SC’s test is different. This also partly answers Tarunabh’s query in the comments section of my first post, wherein he asks whether the test has to be what the individual claims, or what the religious texts lay down. Though Tarunabh sympathises with the former, the law, he suggests, might support the latter. In my view, religious texts may be silent on the question, and it should be left to the community as such. In this case, the Muslim Personal Law Board apparently believes that growing beard is essential to Islam, as evident from its protests against Justice Katju’s observations.

2. Let me come to Art.30 protection. Shamnad apparently believes that the school enjoys Art.30 protection, and therefore, can override Art.25. That is, even if he believes that growing beard is essential to Islam, the student has to choose some other school which permits the practice, because the school which restricts it does so under Art.30. Now, let me turn around this argument a bit. Art.30 is also for linguistic minorities. Supposing a school, being run by a linguistic minority, in order to protect its culture, imposes a uniformity that all men students must wear dhotis, or all female students must have kumkum on their forehead. Obviously, these are unrelatable to the educational objectives of the school, and therefore, would come under aspects of maladministration.

I am unable to understand that imposing uniformity of the sorts which the school has done in the case of Salim advances the educational objectives. Why should all the students look alike in terms of physical appearance? After all, the school is a microcosm of society. If in the society outside the school, all depictions of physical diversity are permitted, why should the school seek to see artificial uniformity within it. On the contrary, encouraging such diversity in appearances of students would inculcate the feeling among them that diversity is a fact of life.

I can understand if the school insists on uniform dress, or a particular dress code, to maintain discipline, and to avoid feelings of inequality among the young students. After all, similar restrictions on growing beard may be unheard of in higher educational institutions, and the students ought to be prepared for that. Can anyone cite any reason to relate restriction on growing beard of a school student with the educational objectives of the school? If it cannot be relatable, then it has to be an instance of maladministration. The test for `administration' (in contrast to maladministration) is not whether the school seeks uniformity, but whether the rule which the school seeks to impose on the students uniformly is relatable to some educational objectives.

3. Can Art.30 be used to override other rights guaranteed in Part III? Although Art.25 begins saying that it is subject to other provisions in Part III, the very language of Art.30 would suggest that if it is used to override other rights in Part III without sufficient justification, then it will be construed as an instance of maladministration, and disentitled to Art.30 protection. The words “establish and administer” in Art.30 only emphasise autonomy of such institutions from governmental interference, and cannot be stretched to mean some sort of licence to decimate other rights in Part III, which, including Article 30, exist independently of the State. There is an essential difference between State’s duty to enforce these rights, and state’s interference for the purpose of Art.30. State has a right or a duty to enforce Art.30 also, but this obligation of the State cannot be construed as interference which curtails the autonomy of institutions protected by Art.30.

Friday, April 03, 2009

Beards, Burqas and Bias: Response To Shamnad

Shamnad's post has raised some interesting issues. I would broadly endorse his concern over Justice Katju's unfortunate reported remarks. But we must understand that these remarks are reported, and are not part of the Court's record. Justice Katju could claim that he made those observations, in order to elicit the counsel's response to some of the doubts he had, and therefore, the remarks do not actually reflect his views. As the media has a tendency to sensationalise such observations, we must be cautious not to fall into the trap, and let our response to Justice Katju's observations be disproportionate.

That apart, here is my response to Shamnad's comments on my post:

Shamnad misses the point that Art.30 protection is against state intervention, and not against individual rights. Therefore, the suggestion that Article 30 trumps Art.25 may not be correct. Therefore, the school in question cannot ask the Sikhs, let alone the Muslims, to remove turban or shave their beard, unless they can establish these uniform guidelines are relatable to the school's educational objectives, and unless the rules for state recognition conflict with those objectives. The school is an unaided, minority institution, but recognised by the State.

According to T.M.A.Pai, even an aided institution will have a right to impose its rules; therefore, the distinction between aided and unaided does not really help our understanding of the issue here. The core test here is whether it is a recognised school. If so, it cannot violate Article 25, in the garb of ensuring uniformity among students. I can understand if the school complains that the State has intervened to tell the management not to impose such a rule on the students - in which case, Article 30 will be relevant. But this is not such a case. Therefore, the student's grievance that the school has maladministered, and lost the protection of Article 30 makes sense.

If you read Article 28(3) carefully, it treats recognition and state aid separately and not synonymously. Therefore, the school being a recognised school, there is no question of the school management imposing a rule without the consent of the parent. In any case, sporting a beard has nothing to do with religious instruction or worship, being promoted by the school, the ingredients of Article 28(3). Some letters carried in The Hindu today point out the widespread practice of schools misusing Art.30 protection to impose unreasonable restrictions on students.

I do not understand why Shamnad thinks the principle laid down in Bijoe Emmanuel case (referred to in my last post) cannot apply in the case of Salim. Can an institution use Article 30 protection, and the fact that it is unaided, to deny the students in Bijoe Emmanuel case their right not to sing national anthem? In that case, though, the school was a government school, and the judgment did not make a distinction and say that it was applicable only to government, non-minority and aided schools.

Beards, Burqas and Bias: Contemptuous Statement?

Venkatesan's interesting post on the Salim case (dealing with the extent to which minority institutions can lay down rules that conflict with the religious beliefs of a student) drew some interesting comments. I want to offer a slightly different perspective (legal) and also to reflect on Justice Katju's unfortunate statement that equates all bearded Muslims with the Taliban!

Most newspapers report that Justice Katju, who, when confronted with Salim’s argument that the constitution guaranteed him the right to practice his faith by keeping his beard is said to have stated: “We don’t want to have Taliban’s in the country. Tomorrow a girl student may come and say that she wants to wear a burqa. Can we allow it?”

I spoke to two counsels who appeared for Salim who confirmed that these statements were indeed made in court. Thereafter, I wrote a short note on Justice Katju's offensive remarks, calling for sharp censure from the Chief Justice. More importantly, I opined that notwithstanding the merits of the case, Justice Katju's callous and insensitive comments about a minority community renders him unfit to be an impartial judge in a case involving the religious rights of that very community. Therefore, the case must be reheard before another bench and it must be considered afresh whether or not Salim's SLP can be admitted.

I sent this short note of mine to a leading newspaper a few days back and they were meant to carry it the very next day. Unfortunately, they expressed reservations at the last minute, citing their fear about potential contempt issues.

I was taken aback: Does every critique of a judge amount to contempt? And besides, if our media shirks away from carrying any critique of a judge, no matter how offensive his remarks, whither our core democratic and free speech values enshrined in the Constitution? And whither the interests of a minority community, whose sentiments are so liberally trampled upon by a judge, meant to uphold constitutional values?

Isn't it fair to demand that a judge who equates every Muslim with a beard with a member of the Taliban is censured? And to argue that such a judge has breached the secular fabric of our Constitution in very deep ways. And that he is not fit to hear a case involving a minority community about whom he has made these gravely offensive remarks?

I am extremely saddened at the attitude of the newspaper in this regard, but do hope that better sense prevails. I have asked them to indicate which portions of the note they've construed as contemptuous, with the hope that such portions could be worked around. In the meantime, if any of our readers know of any courageous papers that may be willing to publish such a piece, please let me know.

Now coming to legal analysis bit, I beg to differ with Venkatesan's views for the following reasons:

1. Most of the decisions delineating the scope of Article 30 would appear to suggest that Article 30 is not an absolute right. Rather, the state has some powers to step in, if the minority institution in question is mal-administered. And this limited power to regulate would also encompass the admission process, particularly when the institution in question has received state aid (TMA Pai case). The power to regulate would also appear to reduce (somewhat) when the minority institution in question has not received any state funds. In Salim's case, the convent school in question has not received any state funds.

2. It is highly improbable that a court would find that a uniform rule that required all students to have a clean shaven countenance amounts to evidence of "maladministration". An unequal application of such a rule might have demonstrated bias and therefore maladministration. But there is nothing on the facts to indicate any such unequal treatment. The petition filed before the Supreme Court speaks about the fact that Sikhs are permitted to keep their beard, hinting at the fact that the school might have made an exception for Sikhs in this regard. However, I spoke with counsel appearing in this case who confirmed that to the best of his knowlede, no Sikh or other student had ever received preferential treatment under the school rules. In other words, the school was likely to ask even Sikh students to erase facial hair.

3. Saleem argues that his right to freedom of religion under Article 25 has been violated. However, Article 25 itself begins by stating that it is subject to other provisions. In other words, Article 30 would trump Article 25 in this context.

One might even draw some support from Article 28(3) that stipulates that any unaided institution can impart religious instruction without the consent of the student or his/her guardian. If a Muslim student can be forced to kneel down and pray at a church (belonging to a Christian convent), surely such a student can also be made to shave his beard, even when such shaving contravenes his religious beliefs. As the MP High Court rightly put it, the student does have an option if he/she is troubled by such a rule: leave the school!

Therefore the Supreme Court bench may have been right in denying admission to Salim's SLP. However, in view of Justice Katju's statements made in open court that equated very bearded Muslim with a Taliban, the possibility of bias against a community cannot be ruled out. And the Chief Justice must not only censure such remarks, but take immediate steps to have this case reheard before anther bench. For justice must not only be done, but also be seen to be done!