Friday, July 31, 2009

RTI's future and the challenge

Guest Blogger

Yamini Aiyar

How effective is India’s Right to Information Act (RTI)? Last week the Hindustan Times quoted a prominent Central Information Commissioner, Shailesh Gandhi, warning the country that the government and the judiciary together pose a serious threat to the RTI. Gandhi argued that the government’s infrastructure - training, resources - for the implementation of the RTI is woefully inadequate. He also highlighted the role of the courts in weakening the Act. The judiciary has been granting stays on orders of the information commission – which he noted is a very dangerous trend.

Gandhi’s concerns resonate with some of the findings of a recently completed country-wide assessment of the RTI conducted by the Right to Information Assessment and Analysis Group’s (RAAG). The study surveyed 27 information commissions to find that nearly 60 per cent of the commissions reported inadequate infrastructure as their biggest problem. Inadequate staff and low budgets were the most commonly cited problems. Perhaps because of inadequate infrastructure, there is a wide variance in the speed and efficiency with which Information Commissions dispose of cases and some states (Gujarat, Maharashtra and Chhattisgarh) have an estimated waiting period of over one and a half years!

The problem of poor infrastructure is not restricted to the ICs. Nine hundred Public Information officers (PIOs) across rural and urban India were interviewed as part of this study. Sixty per cent of them reported never having received any basic training in the RTI. As a result there is a lot of confusion about the Act particularly about the kinds of information that ought to be made public. Another serious lacuna in the government’s infrastructure for the RTI is that of poor record maintenance. Across the system, no effort has been made to collect, analyze and store information in a manner that is accessible and relevant to the public – a fact that was made evident through interviews with heads of departments in all states. Poor record keeping results in delays in the provision of information and is often used as an excuse not to furnish information sought. Moreover, government departments are not making any effort to disseminate information pro-actively. The study surveyed the extent to which government departments are complying with section 4 (proactive disclosure) to find that 70 per cent of government departments report on less than 50 per cent of the items specified under section 4 of the Act. Worse still of the information reported, most of it tends to be out of date and unusable.

There is some good news! Despite this poor infrastructure, people are getting information. The study team filed and tracked 500 RTI applications. Information was received in 55 per cent of cases, and in 40 per cent cases information was received on time. This experience is similar to that reported by applicants surveyed (over 2000 applicants were surveyed in the study) where 58 per cent respondents reported receiving information and 50 per cent said they received information on time.

This good news may be short-lived if steps are not taken urgently to address infrastructure weaknesses. But perhaps the greatest threat the RTI faces comes from the prevalent mind-set – one that runs deep through all our public institutions - that is fundamentally resistant to the idea of open government. The judiciary’s opposition to the RTI application seeking information on judge’s assets and the recent trend that Shaliesh Gandhi alludes to of courts issuing stays on IC orders point to how this mind-set manifests itself.

The obvious irony of the Courts, the key institutional mechanism for enforcing accountability of the executive and legislatures, refusing to hold itself up to legally set standards of accountability and transparency, has not escaped most commentators. Curiously, it points to the urgent need to take steps towards initiating this mind-set change. This is crucial for the future of the RTI. Civil society needs to rise to this challenge.

[Yamini Aiyar is Director, Accountability Initiative, Senior Research Fellow, Centre for Policy Research, New Delhi]

Thursday, July 30, 2009

Entry Barriers to the Profession of Litigation

One issue that I believe that we all, including this blog, should debate and examine more rigorously is the entry barriers that young lawyers face in joining the profession of litigation. I was pleased to find that the Research Foundation for Governance in India (RFGI), an Ahmedabad based think-tank, organized a seminar on this issue earlier this month.

The event was attended by the Chief Justice of the Gujarat High Court - Mr. Justice Radhakrishnan, Dr. Madhava Menon. Mr. Devang Nanavati – Advocate, Gujarat High Court, Mr. Sachin Malhan - Founder of Law School Tutorials, Mr. Vyapak Desai – Head of Cross Border Litigation, Nishith Desai Associates (Mumbai) and Mr. Rajshekhar Rao – Advocate, Supreme Court of India.

The seminar discussed the findings of a survey conducted by RFGI where over 250 juniors, seniors, law students, and judges were interviewed and it was found that while 58% of those surveyed found the practice of juniorship helpful, nearly half the juniors did not receive any compensation for their work. 74% of those surveyed did not think that bright youngsters in India end up joining litigation. Other key findings included that 92% of those surveyed believed a family background in the profession was helpful and 48% of those surveyed believed that the practice of juniorship should be institutionalized in some way. The data also compared the salaries of young litigators in India to those in the US and UK and found that while there is a great discrepancy between the income of young litigators and young corporate attorneys in India, no such discrepancy exists in the UK or US.

The event received some media coverage (here and here), and should hopefully encourage the legal community to introspect on this issue.

Friday, July 24, 2009

NHRC, the law and the police

Readers who read Justice Verma's take on the Naz Foundation case will also be interested in a historical connection going back almost a decade. The NAZ case was born out of the NHRC rejecting a gay man's plea against psychiatric abuse by aversion therapy administered to him, which left him devastated. The NHRC reasoned that it couldn't help him, and cited s. 377. This is what inspired Naz Foundation to challenge the section in the Delhi High Court. I think this deserves mention not merely for the immediate context of 377, but the larger context of the appropriate role of the NHRC. In particular, the relationship of the NHRC with the rest of the state apparatus is topical, given the controversy surrounding its recent report on the Batla House 'encounter' case, where it merely endorsed the police's version of the story without making any attempts to corroborate it. [See also, this previous post] On the other hand, the NHRC also has a sterling record of standing up to state institutions implicated in the violence in Gujarat in 2002 (under Justice Verma himself).

The particular history connecting NHRC and the Naz Foundation case is well documented in a book called 'Queering the Pitch' published by the Alternative Law Forum. Relevant excerpts are quoted below:

The NHRC Case
... The wider definition of human rights in The Protection of Human Rights Act seemed to indicate that the NHRC would be more hospitable terrain when it came to protecting the human rights of queer people.
It is in this context that a petition was filed in the case of a patient at the All India Institute For Medical Sciences (AIIMS), who had been undergoing treatment by a doctor in the psy-chiatry department for four years to cure him of his homosexuality. The patient went to Naz Foundation India (an organization working on MSM issues), and the coordinator of the MSM project, Shaleen Rakesh, filed a complaint with the NHRC alleging psychiatric abuse.
The patient himself noted that “[m]en who are confused about their sexuality need to be given the opportunity to go back to heterosexuality. I have never been confused but was nev-ertheless told that I had to be ‘cured’ of my homosexuality. The doctor put me on drugs, which I had been taking for four years.” The treatment reportedly involved two components: counselling therapy and drugs. During counselling therapy sessions, the doctor explicitly told the patient that he needed to curb his homosexual fantasies, as well as start making women rather than men the objects of his desire. The doctor also administered drugs intended to change the sexual orientation of the patient, providing loose drugs from his stock rather than disclosing the identity of the drugs through formal prescription. The patient reported experiencing serious emotional and psychological trauma and damage, as well as a feeling of personal violation.
The moment the petition was filed, there was a wide mobilization of the sexuality minority community and a number of letters were written to the NHRC urging it to protect the rights of the community. The NHRC, after admitting the complaint (#3920), finally chose to reject it. Informal conversations with the Chairman of the NHRC revealed that the Chairman believed that until Sec 377 was repealed nothing could be done and in any case most of the organizations were foreign-funded, without any real grassroots support. (See Annexure I.) According to another NHRC source, “homosexuality is an offence under IPC, isn’t it? So, do you want us to take cognisance of something that is an offence?”
What is clear from the above comments is that there is a significant lack of understanding of gay people as human beings whose lives encompass a complexity beyond the mere fact of a certain kind of sexual act. There seems to be an easy collapsing of the category of sexual act, sexual identity and sexual orientation, with sexual acts defining identity and orientation.
(pp. 55-56)

Annexure I: Letter to the NHRC Regarding the Dismissal of Complaint #3920 on Medical Treatment of Homosexuality


Dear (former) C.J. Verma,

We genuinely appreciate the stand of the NHRC that caste discrimination is equivalent to racial discrimination and thereby clearly establishing that the NHRC is a protector of human rights regardless of political concerns. While congratulations are in order with respect to the above decision we are deeply shocked and disheartened by another decision arrived at by the NHRC. This is with reference to the decision of the NHRC to dismiss the complaint of the person who was subject to aversion therapy. Regarding this matter we did have a chance to have a short dialogue with you while you were visiting the National Law School, Bangalore for the Seminar on 'Caste and Racial Discrimination’ held on the 10th of August, 2001.

We asked you about the decision in complaint(No. 3920), which was a case regarding treatment of homosexuality as a disease where a homosexual patient was allegedly adminis-tered aversion therapy (which includes administration of electric shocks along with showing a person homo-erotic pictures to ‘convert’ him to heterosexuality). The patient then complained to an organization NAZ Foundation which then brought the matter before the NHRC. The complaint, though admitted by the NHRC was later rejected. We do know that the complaint received public attention and a number of concerned citizens including gay, lesbian, bisexual people wrote to you. However, in its wisdom the NHRC chose to reject the same.

In our conversation, the grounds you stated which justified the rejection were as follows:

 To talk of homosexual rights is okay in other countries but there was little you could do when the law in India, Sec 377 was against it. You advised that one should strive to get rid of the law but nothing could be done till it was repealed. This opinion seems to be buttressed by other reported opinions within the NHRC. As one source within the NHRC put it, “homosexuality is an offence under IPC, isn’t it? So, do you want us to take cognizance of something that is an offence?” (The Pioneer, Thursday, August 2, 2001)

 You also mentioned that the entire campaign for the rights of sexual minorities is run and funded by international organizations and that there is no grassroots support or demand for such rights.

It is submitted that none of the above grounds are sound justifications for the rejection of the complaint. The reasons are mentioned hereunder:

Firstly, s. 377 of the IPC does not criminalize homosexuality. It only criminalizes 'carnal intercourse against the order of nature', which has been interpreted to include oral sex, anal sex and some other forms of sex. These sexual practices are neither exclusive to the homosexual community nor definitive of what it means to be a homosexual. It is beyond our comprehension how a legislation which particularly targets certain kinds of sexual acts can be used as a justification for not looking into the human rights violations against a gay person. Is it your understanding that being gay is about engaging in those forms of sex alone or being heterosexual means you do not engage in oral/anal sex? What is clear from the above comments is that there is significant lack of understanding of gay people as human beings whose lives encompass a complexity which goes beyond the mere fact of a certain kind of sexual act.

Secondly, the statute from which the NHRC derives its mandate, i.e. the Protection of Human Rights Act, defines a 'human right' as 'rights guaranteed under the Constitution of India or International Covenants, viz. the ICCPR and the ICSER'. The NHRC mandate is therefore not limited by mere statutory law. Hence the existence of an offensive colonial law, Sec 377 of the IPC ( which the colonial power has finally removed) , cannot trump the right to life ( including privacy) under Art 21 , the right to freedom of expression under Art 19 and the right to equality under Art 14. Thus the argument that a statute criminalizes a particular conduct need not necessarily take it out from the purview of human rights. Apart from being legally unsound, the argument that since law forbids something, it cannot be a human right does not hold waters even logically. If we go by it, then nothing that was done in Nazi Germany shall be a human right violation since it had the sanction of the law! (As a matter of fact, homosexuals were one of the social groups along with Jews, communists and other kinds of dissenters who were targeted in Nazi Germany for persecution).
Further since the two covenants are explicitly invoked by the above mentioned Act, it is appropriate to mention that in Toonen v. Australia, Nicholas Toonen a gay rights activist resident in the Australian state of Tasmania challenged the anti sodomy law as violative of Art 2 (1) Art 17 and Art 26 of the ICCPR , before the Human Rights Committee after exhausting all local remedies.
The Human Rights Committee in its interpretation of the ICCPR has held that the anti sodomy statute did violate Toonen’s right to privacy guaranteed under Art 17. The Committee also held that the reference to the word sex in Art 2(1) and Art 26 is to be taken as including sexual orientation .It held that Art 2(1) was also violated but refused to rule on if Art 26 , the non discrimination clause was violated.
Since India is a party to the ICCPR and human rights as defined in the Protection of Human Rights Act includes the covenant(ICCPR), the interpretation of the rights of those discriminated against on the basis of their sexual orientation needs to be recognized by the NHRC which should if it feels that the barrier to admitting the rights of sexuality minorities is Sec 377 , suo moto challenge the law in the Supreme Court itself , rather than use the existence of the law as an excuse for denying gay lesbian people their rights. To buttress this point further, even the 272nd report of the Law Commission of India has recommended that such an archaic provision be deleted.

Thirdly it comes as a shock to those of us who saw the NHRC as guardian of the human rights of all people in India to understand that the NHRC feels that it can do nothing in the case of a patient at the All India Institute of Medical Sciences (AIIMS) who received almost four years of treatment aimed at the conversion of his homosexuality and was seriously psychiatrically abused. The treatment reportedly involved two components: counseling therapy and drugs. During counseling therapy sessions, the doctor explicitly told the patient that he needed to curb his homosexual fantasies, as well as start making women rather than men the objects of his desire. The doctor also administered drugs intended to change the sexual orientation of the patient, providing loose drugs from his stock rather than disclosing the identity of the drug through formal prescription. The patient reports experiencing serious emotional and psychological trauma and damage, as well as a feeling of personal violation, due to these actions.
This complaint 3920 illustrates the necessity for formal standards to prevent discrimination and abuse on the basis of sexual orientation in medical and psychiatric care. There is no doubt that in the absence of these standards, physicians cannot be held accountable for such human rights violations against lesbian, gay, bisexual, and transgender individuals occurring in psychiatric and medical contexts throughout India. This case also underscores the urgent need for explicit laws preventing discrimination on the basis of sexual orientation to address abuse and inequalities in all sectors of society including the medical establishment.
However this opportunity to address the very real sense of abuse that gay, lesbian bisexual people in India face , was passed by and the medical profession has been allowed to continue its outdated practices of prescribing drugs and trying to change the sexual orientation of a person.

Fourthly it is disheartening to see the stark dissimilarity in the stand taken by the NHRC and the South African Human Rights Commission on the issue of homosexuality. The South African Human Rights Commission acting in coordination with the National Coalition for Gay and Lesbian Equality moved to the highest Constitutional Court in South Africa and got the provision of a similar nature to s. 377 of the IPC struck down as violative of basic human rights of equality, privacy and dignity guaranteed by the South African Constitution. By contrast the NHRC even refuses to acknowledge that the right to choose one's sexual ori-entation is a basic human right.

Finally we would like to make the point that the key to the decision of the NHRC really lies in what you referred to in your second point ie that ‘the entire campaign for the rights of sexual minorities is run and funded by international organizations and that there is no grassroots support or demand for such rights.’ This in a sense is a double failure , the failure of the sexuality movement to communicate its strong indigenous roots and presence, as well as the failure of the establishment to notice the increasingly articulate though marginal voice of people who identify as gay ,lesbian and bisexual.

It is important to understand that today the sexuality minority community comprises a diversity of identities including hijras, gays, lesbians, bisexuals kothis and a multiplicity of other identities both modern and traditional. The lives of individual people who identify as gay or lesbian or hijra or any other sexuality minority deserve a protection which is guaranteed to all other citizens of India.

We do hope that the NHRC would consider the rights of gay, lesbian, bisexual and hijra people as human rights in future complaints which would inevitably come before it.

Thanking you,


( Some of the students, faculty and researchers of NLSIU, Bangalore)
(pp. 79-81)

Justice J.S.Verma comments on the Naz Foundation Judgment

Guest Blogger


It is a misreading of the Delhi High Court judgment to contend that it approves or legalizes, much less glorify the practice of homosexuality, practiced in privacy. It merely decriminalizes consensual homosexuality or unnatural sex practiced in privacy between consenting adults. This was the limited point at issue and the scope of this decision. To read anything more in it is not justified.

I believe, a judgment need not contain more than what is necessary for its conclusion. May be, some parts of the judgment were not necessary for its conclusion and decision, which are being erroneously projected for widening its scope to seek legal sanction for homosexuality or unnatural sex. It is, therefore, necessary to consider whether the judgment is supportable for its decision on the limited issue without enlarging the scope of the debate on homosexuality for which the court in this case is not the proper forum.

In my view, the decision can be sustained on only a part of the High Court’s reasoning, without addressing the larger issue of homosexuality or unnatural sex, or the right to practice it as a societal norm.

The scourge of the spread of HIV/AIDS is threatening to become pandemic, and India is in its grip. One of the targets for the year 2015 in the Millennium Development Goals is to combat all critical diseases, which includes preventing the spread of, and treatment of HIV/AIDS. The Union Health Ministry and NACO have given statistics to prove that it is necessary to bring out of the closet homosexuals (MSM) infected with the HIV virus to aid the national programme for combating the spread of HIV/AIDS; this infection is many times more in MSMs than in the general public; and it is necessary to decriminalize consensual homosexuality in privacy to bring them out of the closet to treat them, and to arrest the spread of infection through them. This factual reality is significant for the decision of the limited issue before the court.

The directive principle of state policy in Article 47 of the Constitution of India imposes a primary duty on the State, inter alia to improve public health. This primary duty of the State has to be read with the people’s fundamental right to life under Article 21, de hors the right claimed by the homosexuals. Any step taken by the State to improve public health is indeed an action to enforce the general public’s fundamental right under Article 21.

The World Health Organisation (WHO), in its Constitution declares that ‘the enjoyment of the highest attainable standard of health is one of the fundamental tights of every human being’ and ‘health is a state of complete physical, mental and social well being and not merely absence of disease or infirmity’. By virtue of the VISHAKA judgment this requirement has to be read in Articles 21 and 47 to enlarge their scope. To this extent, even the infected homosexuals have an enforceable right for medical treatment.

For the performance of this primary duty of the State, and enforcement of the general public’s fundamental right, it is necessary to act to combat HIV/AIDS, which is also the commitment of the international community and a MDG. This requires decriminalizing consensual homosexuality practiced between adults in privacy under Section 377 IPC.

The right under Articles 14 and 15 would be available to the infected homosexuals only for getting the necessary medical healthcare, because all infected persons form one category in this respect and they cannot be discriminated or separated for the purpose of medical healthcare. However, this is not to be construed as conferring the right to practice homosexuality, or to giving it legal sanction.

There is one more aspect. It is a fact for judicial notice that there has hardly been any prosecution for decades of any act of consensual homosexuality or unnatural sex practiced in privacy between adults. Why have a law, which is a dead letter and incapable of enforcement? To this extent Section 377 IPC being redundant needs to go from the statute book.

In my view, the above reasoning alone is sufficient to support the conclusion and decision of the Delhi High Court decriminalizing consensual homosexuality practiced in privacy between adults.

A reference to depiction of homosexuality or unnatural sex exhibited at Khajuraho etc. is to be seen as a record of such an aberration prevalent even in those times, and not as an accepted part of our ancient culture. What is accepted now in the West is not to be incorporated automatically in our culture and ethos. Let us not ape the west in every thing!

The debate on constitutional morality vis-à-vis public morality is not necessary for this decision. A passing reference to it is being made because of the mention to it. Constitution is a live document to serve for all times, which enacts principles to be interpreted in tune with the times. The perception of public morality at a given time may be a relevant factor to interpret a constitutional principle in tune with the times so that no gap is seen between them. The role of the courts is significant for this purpose. To quote Prof. Jeffrey Jowell, “The Rule of Law is seen as a principle of institutional morality”. Morality is a component of law, to be so interpreted for doing justice. No more discussion of this topic is necessary in this context.

I would, therefore, suggest that the Delhi High Court judgment be read and construed in this manner only. There is no justification to read any thing more in it. It can be sustained on the above limited ground.

[I am thankful to Justice Verma for writing this comment exclusively for us on the basis of his impromptu speech at a seminar on "Homosexuality, Sociology,&Law: A Critical Evaluation" organised by the Supreme Court Bar Association at the Indian Law Institute, New Delhi, on July 22]

Thursday, July 23, 2009

Statement on the NHRC report on the alleged encounter at Batla house

On 20th May,the Delhi High Court,acting on a petition filed by the People's Union for Democratic Rights and Anhad, had asked the National Human Rights Commission to conduct their own inquiry into the alleged Batla House encounter of September 2008 and give a report upon it. This order of the High Court was made after the High Court was shown reports of four independent organisations into the encounter, including the report of PUDR, the Delhi union of journalists, the Jamia Teachers Solidarity group, all of which seriously questioned the version of the Delhi police regarding the encounter. These reports and the petition filed by the PUDR had pointed out several specific problems with the version of the Delhi police. In particular, the following questions were raised about the version of the Delhi police.

1. If these boys were killed in a genuine encounter, how did the 17-year-old boy Sajid have four bullet holes on the top of his head, which could only happen if the boy was made to sit down and shot from above.
2. How is the skin peeled off from Atif's back? This was clearly visible in the photograph taken before his burial which is annexed to the PUDR petition. Obviously Atif had been tortured before being killed.
3. How are the other blunt injuries on the bodies of the boys explained by the police version of the encounter?
4. If the police knew in advance (as they claimed) that these boys in the flat were the terrorists involved in the Delhi and other bomb blasts, why did Inspector Sharma go in without a bullet proof vest?
5. How could 2 of the boys escape from the flat which had only one exit (two doors next to each other) and from a building which had only one exit?

It was expected that in these circumstances, the NHRC, would conduct its own investigation into the matter. The report dated 20th July 2009 of the NHRC given to the High Court on 22nd July, however shows that far from conducting any investigation into the matter, the NHRC has merely relied upon the Police reports for their report. They have not even examined or investigated the above questions which were squarely raised in the PUDR petition on which the High Court order was issued to the NHRC. They have not even examined Saif, the third boy picked up by the police from the flat, nor even any of the witnesses of the Batla house area who had deposed before the People's Tribunal. They have just swallowed the police version hook, line and sinker. And this is despite the fact that there has been no independent police investigation or even a Magisterial enquiry into the encounter as mandated by the NHRC's own guidelines.

It is extremely unfortunate that the premier Human Rights Body set up to investigate Human Rights violations is becoming a rubber stamp for the police. The same attitude of the NHRC was evident when the Supreme Court asked the NHRC to investigate allegations of Rape and Murder against the Salwa Judum. The NHRC sent a team of essentially police officers who spoke mainly to the local police and other officials and gave a white washing report.

The time has come to seriously reexamine the manner of appointment of members of the NHRC and its powers. The present system of appointment by a committee of Prime Minister, Home Minister, Speaker and Leader of Opposition etc. is not working satisfactorily. All of them seem to want a toothless and tame body which will not question those in power.

Since the NHRC report does not address or answer the disquieting questions raised by the several independent fact finding reports about encounter, it is therefore essential that there be an investigation into the "encounter" by an SIT appointed by the Delhi High Court.

Signed by:
Shabnam Hashmi (Anhad)
Moushumi Basu (Secretary, PUDR)
Dr. Anoop Saraya (Jan Hastakshep)
Harsh Mander (Director, Center for Equity Studies)
Sreerekha & Tanvir Fazar (Jamia Teachers Solidarity Group)
Colin Gonsalves (Director, Human Rights Law Network)
Arundhati Roy (Writer)
Kavita Krishnan (CPI ML Liberation)
Kamini Jaiswal (Advocate)
Mehtab Alam (Association for the protection of democratic rights)
Prashant Bhushan (Advocate)
[The NHRC Report on Batla House encounter is available on its site]

Pakistani Supreme Court Reviewing the Last Ten Years

Although it hasn't seemed to have caught much attention in India, the central news story in Pakistan the last few days is that a 14-judge bench of their Supreme Court is hearing a case that now seems to be considering a whole range of alleged legal wrongs that happened over the last 10 years. Just yesterday Pervez Musharraf was called to either appear in person in front of the Court or have legal counsel do so to answer legal allegations that took place during his leadership - this is the first time a former military ruler of Pakistan has been asked to account for his actions before a Pakistani court. The case has now taken on a whole range of issues, as the above Dawn article describes:

"Three days of proceedings on a petition filed by the Sindh High Court Bar Association against non-confirmation of two SHC judges — Justice Zafar Ahmed Khan Sherwani and Justice Abdul Rasheed Kalwar — evoked apex court’s interest in looking into the entire gambit of issues, from revisiting the Tikka Iqbal Mohammad case of validating the Nov 3 emergency to deciding the fate of PCO judges to the amendments made to the Constitution by inserting Article 270AAA and other effects of actions taken during the emergency."

Although I am happy to see the Pakistani judiciary seriously looking at a number of these perceived legal wrongs, I do worry that they might be taking on too much and some of these issues deserve to be handled separately. Cases like Tikka Iqbal Mohammad (which was decided by 13 judges) would require a bench of the current size to be over-ruled and so there is an understandable temptation to try to lump all these "high-bench issues" together when you have such a large bench already together.

This though points to one of the potential downsides of having a system in which you need a larger bench to overrule a past decision. In India it is unlikely a bench will go past 13 judges any time soon and it is arguable if this is really hampering the system. In contrast, in Pakistan you have had much more political (and judicial) turmoil over the last few decades and so larger and larger benches have had to be called upon in rather quick secession (in fact, I wonder why they chose 14 instead of 15 for this latest bench). You have to wonder where this all stops and when the bench size just gets too unwieldy. I'm sure anyone who has had to study Kesavananda Bharati would feel instant sympathy with the next generation of Pakistani law students at the prospect that they may have to end up reading potentially many different lengthy judgments on not just one, but a range of legal issues that may result from this single case.

Tuesday, July 21, 2009

Suchitra Srivastava v. Chandigarh Admn

It was a dramatic hearing characterised by unusual human interest on both sides. The SLP against Chandigarh Admn v. Nemo was heard by the Supreme Court within four days of the High Court verdict as a special case, in order to render justice to a mentally retarded and abandoned girl, an inmate of Nariniketan, Chandigarh, who was expected to terminate her 19 week-pregnancy following the HC verdict. I need not deal with the facts of the case, as one can know the facts from the HC judgment linked to in my last post. Today, after two hours of arguments, the Supreme Court stayed the HC judgment, and indicated that it would give the reasons later.

The petitioner was ably represented by Tanu Bedi, who continued her arguments which she began yesterday. The Chandigarh Admn was represented by Anupam Gupta. Tanu Bedi began her arguments today by referring to the mandate of Article 39, but the Bench stopped her from going ahead saying that it was all clear and wanted to know who would look after the child when born, as it was convinced that the mother could not rear the child after birth.

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation & Multiple Disabilities, established in 1999 through an Act of Parliament, came forward to look after the child, if born with any disability. The Disability Rights Group also came forward to look after the child after birth.

Anupam Gupta said the HC judgment was the most practical way out of this dilemma and suggested that if the pregnancy continued, according to medical reports, it would further affect her mental health. The Bench comprising the CJI, Justice Sathasivam, and Justice B.S.Chauhan, however, made up its mind during the hearing, to stay the HC judgment for valid reasons. First, The CJI believed that if there were risks in continuing her pregnancy, nature would correct the risks. Second, if continuation of pregnancy could affect mental and physical health of the mother, doctors would be able to treat her, if there are fresh complications. Third, it appeared to the CJI that the Chandigarh Admn was anxious to terminate only because of the legal stipulation that it could be done only within 20 weeks of pregnancy. There have been no complications so far, and it is unreasonable to be pessimistic about the possibility of her safe delivery.

The CJI was of the view that pregnancy complications could happen to any normal woman, and that cannot be a ground for terminating in the case of a mentally retarded woman. The CJI said termination could aggravate her trauma, as she is mentally looking forward to seeing her child, though she is incapable of rearing the child herself. To a question whether the U.T.Admn will take care of the child, Anupam Gupta appeared pessimistic about finding the right persons for the task. He also said none of the institutions or trusts had offered to help during the HC's hearing. To this, the Bench said since the SC is hearing the SLP, some institutions have come forward, and it is likely that some sincere parents too may come forward to take care or adopt the child. Anupam Gupta began his arguments quoting Oliver Wendell Holmes, but it failed to convince the Bench.

Colin Gonsalves, who appeared for a social worker pleading for abortion, suggested there are increased chances of abortion, if the pregnancy continued. The Bench wanted to know from the psychiatrist and the gynecologist who knew the patient, and who were present during the hearing whether continuation of pregnancy would affect the mother's health. When they answered that she could safely deliver the child, and that she was physically fit for delivery, the Bench concluded that HC order had to be stayed. The Bench was not persuaded by the suggestion that she would not be able to cope with pregnancy.

It will be interesting to read the reasoned order in due course, and also follow the health of the mother and the child, to know who is vindicated in this case.

UPDATE: Ms.Tanu Bedi was kind enough to clarify some issues in this case. As she rightly points out, the MTP Act, as amended in 2002, defines in S.2(b) “mentally ill person” as a person who is in need of treatment by reason of any mental disorder other than mental retardation;’.

Section 4(b) makes it clear that if the woman is not a mentally ill person, then her pregnancy cannot be terminated except with her consent. As Tanu Bedi pointed out, the woman in question is mentally retarded and not mentally ill.
Now, why did the Act exempt mentally retarded woman from mental illness? Because, the Act assumed that mentally retarded persons are slow in learning, but capable of deciding themselves.

Even as this distinction is compelling, Chandigarh Admn's counsel, Anupam Gupta, points out to me that it is important to read the HC's first judgment wherein the HC extensively dealt with this issue, and agreed with him that it is not correct to read the MTP literally, as she is not in a position to give her consent as per the Act. I invite the readers to reflect on this complicated case, and let me know if they have any questions further to ask the counsel.

‘The Working of a Judicial Mind’: Reflecting on a bar-bench exchange in the Naz SC hearing

This post focuses upon a reported exchange in the Supreme Court hearing of the Naz case, between Chief Justice Balakrishnan and the lawyers supporting the High Court judgment in Naz Foundation. The specific issue involved the legitimacy of referring to foreign and international experiences while deciding controversial questions of domestic constitutional law. As Mr. Venkatesan recounts it, when counsel for ‘Voices against 377’ relied on the fact that other countries had decriminalized same sex intercourse, the Chief Justice apparently remarked that “our civilization is different from European civilization.” Later in the post, I will explain why I found this comment somewhat strange. For now, though, a brief diversion.

I am currently reading the absorbing new book by Justice Albie Sachs of the South African Constitutional Court, ‘The Strange Alchemy of Life and the Law.’ Justice Sachs is considered one of the most extraordinary jurists of our age, and this book provides ample evidence for why that claim is so often made. Part-autobiography, the book is an insightful self-reflection on ‘the working of the judicial mind’ (which is the title of one of the chapters) and is an interesting account, drawing at times from extracts of landmark judgments delivered by the South African Constitutional Court. Scholars of courts and judges have long lamented that judges do not write more about the processes they adopt to make the often difficult decisions they have to hand down. This book seeks to fill that vacuum, and provides fascinating (but not sensational) insights into the art of adjudication. Although the book deals primarily with South African issues, readers in India will be struck by the impact that India’s founding leaders and its constitutional experience had on South African legal personalities in general, and on Justice Sachs in particular.

Returning to the thrust of this post, a particular passage in the book is relevant to the bar-bench exchange in the Supreme Court hearing on the Naz case. Justice Sachs mentions how, during oral argument for a controversial case, he posed a question to counsel, which was picked up by the press and became a sensational issue as it was taken to reflect the judge’s thinking on the issue. In the recent past, we’ve seen similar instances in India, where stray statements by Supreme Court judges have given rise to controversy. Taking a position similar to that advanced by Indian Supreme Court judges, Justice Sachs has this to say on the issue (at page 32):

The exchange with counsel is part of the rough and tumble of legal life, and an important way of getting to legal truth. But, in the end, we judges are accountable through the judgments we deliver, and not the questions we ask.

The reason I was struck by Chief Justice Balakrishnan’s reported comment is because it appears to conflict with positions he has taken in extra-judicial speeches that were delivered very recently (and are available on the website of the Supreme Court). These speeches were delivered in Cairo (March 2009) and Qatar (May 2009) respectively. In both texts, the Chief Justice addresses the debate over the use of foreign and international law in constitutional adjudication, a contentious issue that has invited commentary from judges and scholars in several jurisdictions in recent years. Since the analysis in both speeches is essentially the same, I will refer to the Cairo speech. After providing a succinct and fairly thorough analysis of the debate over the use of foreign decisions, Chief Justice Balakrishnan remarked (at pages 34-35):

It is disappointing to learn of the extent of distrust of foreign precedents amongst some prominent members of the legal community in the U.S.A. … Judges in India routinely cite precedents from U.S. Courts besides other foreign jurisdictions and international law. … It is true that the socio-political conditions prevailing in different jurisdictions will pose legal problems particular to them, but there is no reason why constitutional courts in these countries should not benefit from each other’s experiences in tackling them. ….

Chief Justice Balakrishnan then went on to document the role of Indian jurists in evolving the ‘Bangalore Principles’ which exhort judges to use foreign and international law to advance the cause of international human rights. He then concluded with these words:

The growth of constitutionalism will be better served with less resistance to the increasingly important discourse of comparative constitutional law. It is through this framework of recognizing a growing international consensus on the understanding of individual as well as group rights that judges in constitutional courts can lead the way in advancing socio-political reforms in their respective countries.

This statement shows that Chief Justice Balakrishnan adheres to a remarkably cosmopolitan and progressive approach towards the task of constitutional interpretation. But how does one square the view expressed by the Chief Justice in open court (which displays a tendency towards legal parochialism and knee-jerk xenophobia) and the analysis he offered in these extra-judicial speeches?

Justice Sachs’ quoted statement from his new book may help us resolve the conundrum. Although Chief Justice Balakrishnan is yet to address the issue of using foreign and/or international law in his judgments (I mean the broad issue generally, rather than whether a particular foreign constitutional doctrine/concept - such as strict scrutiny - is relevant for India), his speeches may give us some hints about his actual thoughts on the issue. His statement in court should perhaps be understood as, to use Justice Sachs' phrase, “a way of getting to legal truth” and not as a reflection of his own thinking on the issue. In that sense it is akin to the questions a moot court judge may lob at a law student, to test her grasp of, and confidence in, an expressed argument.

Much has been made of the way the Delhi High Court used foreign and international law to justify its central holding. If the Naz case does go forward in the Supreme Court, this issue will come up for discussion and debate once again. It will be interesting to see if Chief Justice Balakrishnan revises his view on the use of foreign decisions in the context of this particular case.

Monday, July 20, 2009

Supreme Court declines immediate stay on Delhi High Court's Naz Foundation judgment

The hearing on the SLP against Delhi HC's July 2 judgment on Naz Foundation v. UOI (Suresh Kumar Kaushal v. Naz Foundation) began at 12.35 p.m. and ended at 12.50 p.m. at Court No.1 before CJI and Justice Sathasivam. I am posting a quick summary of the proceedings, subject to corrections. The Court declined to accept petitioner's plea for an immediate stay on the HC's judgment, without hearing the UOI. The A-G said the Government has a definite stand, but wanted more time to formulate it, since three ministers were involved. He did not support the plea for an immediate stay. The Court then granted the Government eight more weeks to file its reply to the notice.

At the outset, the Petitioner's counsel drew to the Court's attention, the A-G's view that S.377 was not invoked against consenting adults in private even once. But the impact of the Delhi High Court's judgment, he suggested, is such that consenting adult sex between two males is legalised, whereas commercial sex between male and female continues to be illegal. Another counsel also brought the question of locus, saying petitioner in this case was not a party before the High Court, but the CJI immediately dismissed the objection, saying it is a PIL matter.

The petitioner's counsel then referred to the R v. Brown case in support of his plea for an immediate stay on the judgment. At this point, Anil Divan, on behalf of the NGO, Voices, argued that the HC judgment is in line with the UN Resolutions, and WHO guidelines. Secondly, he said many countries including Fiji, South Africa, Canada, whole of Europe, South Africa ,Hong Kong have decriminalised the same sex conduct.

CJI at this point intervened to say that our civilization is different from European civilization. Anil Divan replied saying that our culture also includes Khajuraho, and Kamasutra.

The petitioners' counsel then referred to Mahatma Gandhi's criticism of gay sex behaviour. As editor of the journal Young India, Mahatma Gandhi wrote in 1929 about the 'unnatural vice' in boys' school.

The Petitioner's counsel then suggested that things would not turn upside down if the SC stayed the HC judgment, and let the Government take its own time to take a definite stand. He also pointed out that AIDS spreads eight times faster through same sex conduct than through hetero sex behaviour. He argued that there had been no conviction under S.377, and therefore, a stay on HC judgment would not make any difference.

When the Petitioner's counsel referred to the possibility of a rise in gay marriages following the judgment, the CJI said such marriages are prohibited under the Personal Laws, and the judgment did not legalise gay marriages. When the Petitioner's counsel argued that 70 per cent of population lives in villages, and people mostly don't understand that the HC order legalised sexual conduct, and not marriages between two consenting same sex adults, the CJI said that cannot be a ground for the stay, but a reason to educate the people about the HC's judgment.

Saturday, July 18, 2009

Chandigarh Admn v. Nemo: Should a mentally retarted woman be denied the right to keep her pregnancy?

This case was perhaps the first relevant opportunity to apply and test the principles of Naz Foundation for other minorities. But the Punjab and Haryana High Court's judgment is a huge disappointment. You can access the judgment on the Punjab and Haryana High court website . It was delivered by Justice Suryakant on his and Justice Augustine George Masih's behalf on July 17. [CWP No.8760/2009]. A PDF version of the judgment is also available at this site.

The HC declined to accept the plea of the pregnant woman inmate of Nari Niketan, who is mentally retarded, not to abort her pregnancy on the following grounds, which to me, appear bizarre:

A. The women who wish to keep a pregnancy under the MTP Act must know how pregnancies are caused and how a child is born etc. (Paragraphs 18 and 19). My question: Surely, such a ground may be invoked against those ignorant pregnant women, who are not mentally retarded?

B. Paragraphs 20 and 21: Social and financial conditions of the pregnant woman have a bearing on whether she could be allowed to continue the unwanted pregnancy. Will the Court apply the same criteria for non-mentally retarded women?

C.Paragraph 22: Social and family support is crucial for a pregnant woman. The Court's desperate search for an institution which will provide such a support proved futile. Q: Is it an indication of the Court's helplessness or the misfortune of the pregnant woman? I am sure if there had been enough publicity, many institutions or families would have come forward to adopt the child once it is born. After all, the woman has been declared to be physically healthy to bear and raise the child.

D. Paragraph 24: I am unable to find any correlation between the mental age of the mother and the likely inadequacy of the learning process of the child. The Court does not rely on any medical evidence for this assertion. Please read further the same paragraph: If a child does not have a mother or father, does she have no right to be born?

E.Paragraph 25: If there is no consensus or unanimity of the parenting abilities of the mentally retarded parents, why should the Court assume that the victim's abilities will be limited?

F. If Paragraph 28 is correct (medical evidence points to greater probability of mental retardation amongst children of mentally retarded parents), why not advice the Parliament to amend the MTP Act which gives a choice to a mentally retarded pregnant woman to keep her pregnancy, if the guardian gives consent? Did the Court, which acted as a guardian in this case, seek to legislate?

G.Paragraph 29: Did the Court let its prejudices, marked by its pessimistic and defeatist outlook, influence the social acceptability of her rights as a parent?

In a recent case, the Bombay High Court has delivered a landmark decision in favour of a disabled recruit, who faced discrimination at the hands of his employer before joining. [Ranjit Kumar Rajak v. State Bank of India]Readers may well compare this with the Chandigarh Admn. case.

Dilip writes: I agree. The decision has not only a eugenic feel to it but the court seems to have projected its own strong views on the subject onto the victim. See para 30 where the court rejects the contradictory opinion of the expert committee: 'We firmly hold that notwithstanding the ambiguous responses given by the victim to some members of the Expert Body, who have erroneously though bona-fidely believed as if she is keen...'

It reminds me of Oliver Wendell Holmes' judgment in Buck v. Bell where he said:"It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind."

Friday, July 17, 2009


Sage has just brought out a 4-volume set on State of Social Justice in India edited by Ranabir Samaddar. The table of contents of these four volumes can be read here. Some of these chapters may be of interest to us:

Justice in the Time of Transition: Select Indian Experiences SABYASACHI BASU RAY CHAUDHURY

The Founding Moment: Social Justice in the Constitutional Mirror SAMIR KUMAR DAS
Indexing Social Justice in India : A Story of Commissions, Reports and Popular Responses BHARAT Bhushan

Trivialising Justice: Reservation under Rule of Law ASHOK AGRWAAL

The Fallacy of Equality: ‘Anti-Citizens’, Sexual Justice and the Law in India OISHIK SIRCAR

Series Acknowledgement RANABIR SAMADDAR

Series Introduction RANABIR SAMADDAR

Ethnic Politics and Land Use: Genesis of Conflicts in India’s North-East SANJAY BARBORA
Contexts and Constructions of Water Scarcity LYLA MEHTA
Karnataka: Kudremukh: Of Mining and Environment MUZAFFAR ASSADI
Report of Investigation into Nandigram Mass Killing: A Report by Sanhati
Eroded Lives: Riverbank Erosion and Displacement of Women in West Bengal KRISHNA BANDYOPADHYAY, SOMA GHOSH and NILANJAN DUTTA

The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005
The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
The Right to Information Act, 2005
The National Rehabilitation and Resettlement Policy, 2007
The Protection of Women from Domestic Violence Act, 2005

Section III. JUSTICE: LAW AND BEYOND: Introduction
Illegality and Exclusion: Law in the Lives of Slum Dwellers USHA RAMANATHAN
Illegal Coal Mining in Eastern India: Rethinking Legitimacy and Limits of Justice KUNTALA LAHIRI DUTT
Verdict on an HIV Case, Supreme Court of India LAYA MEDHINI, DIPIKA JAIN and COLIN GONZALVES
An Indian Charter for Minority Rights Sabyasachi Basu Ray CHAUDHURY

Section IV. WOMEN AND MARGINALITY: An Issue of Gender Justice
National Policy for the Empowerment of Women (2001)
Women, Trafficking and Statelessness in South Asia PAULA BANERJEE

Voices from Folk School of Dalit Bahujan and Marginalised to Policy Makers PEOPLE’S VIGILANCE COMMITTEE ON HUMAN RIGHTS
Social Assessment of HIV/AIDS among Tribal People in India NACP III PLANNING TEAM
Caste is Dead: Long Live Caste G P DESHPANDE
Tehelka Debate: Beyond Caste PUROSHOTTAM AGARWAL
Report from the Flaming Fields of Bihar: A CPI (M-L) Document

Jungle Book: Tribal Forest Rights Recognised For First Time NANDINI SUNDAR
Informal Sector in India: Approaches for Social Security
Arguments, Protests, Strikes and Free Speech: The Career and Prospects of the Right to Strike in India RAJEEV DHAVAN
Democracy and Right to Food JEAN DREZE