Wednesday, October 28, 2009

Foreign Corrupt Practices Act

Indian Ambassador to the US Meera Shankar's recent letter to the PMO listing seven instances in which US companies (including a subsidiary of Dow Chemicals) bribed Indian officials has caused a huge stir. More interesting is how she got details -- through a US law which punishes US companies for bribing officials abroad. I wrote a newsreport on this legal framework in today's Indian Express. India of course, has no such law, has signed on to no international commitments. Still, 'pax Americana', claims the Left. Hypocritical?

Tuesday, October 27, 2009

Ideas of Justice

I did a review recently of Amartya Sen's Idea of Justice for Infochangeindia which I thought some of you may be interested in. Of course it is tough to do justice to a book in a short review, but following Sen's departure from justice as an abstract virtue, the more important thing may be to ensure that we don't do injustice to it

Ideas of Justice

In his parable about the risks of cartography, J L Borges speaks of an empire that attempted to create the perfect map that would coincide point for point with the actual space that it sought to map. The cartographers rapidly understood the folly of their ambition when they realised that the perfect map of the empire would have to be as large as the empire itself. Any attempt to review a book as ambitious as The Idea of Justice necessarily runs the risk of engaging in an unconscionable cartography of ideas. So rather than engaging with every aspect of Amartya Sen’s argument, it may be more useful to locate what the book is attempting to respond to and then focus on one specific aspect of the book.

Let us be clear at the outset that despite its prominence in all popular bookstores, this is not a book that will have popular appeal. Unlike his previous work, The Argumentative Indian, a series of essays on culture and politics in India, which had a readership beyond the world of academia, The Idea of Justice is targeted at the academic community, and a specialised one at that. The book is located squarely within dense debates in liberal political philosophy which has its own conventions of analysis, argumentation and style. And like most genres, the mode of enquiry may be somewhat of an acquired taste.

In particular Sen’s contribution is a response to John Rawls’ Theory of Justice -- a book which has stood colossus-like over the domain of normative philosophy. Sen’s departure from Rawls stems from his disagreement with the transcendental normativity that is at the heart of Rawls’ theory of justice. In particular, Sen argues that the overarching frame that has dominated debates on justice is an obsession with the definition of the perfectly just society, from which we judge institutional arrangements. Sen states that “If a theory of justice is to guide reasoned choice of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient”. Sen’s critique of the transcendental approach is both at the level of their feasibility as well as their redundancy.

Rejecting the social contractarian obsession with the definition of the perfectly just society, Sen argues that it is injustice and not justice that should be our starting and end point. Distinguishing himself from the approach of ‘transcendental institutionalism’, Sen instead argues for the virtue of a social choice theory -- influenced significantly by the work of Kenneth Arrow, but also drawing from a tradition as diverse as Adam Smith, Marx and the utilitarians.

Another clear departure in Sen is his critique of what he sees as a parochialism in the debate on justice. Sen argues that living as we do in a globalised world we cannot but think of justice as a global genre. He finds a lot of the existing theories, at their best too embedded within the concerns of the western world, or at their worst, ignorant of the reality of the wider world and the ethical demands that may be made in the quest for global justice. In attempting to remedy the epistemic parochialism that permeates these debates, Sen uses a range of sources from the Mahabharata to Akbar to the distinction between niti and nyaya. He says that the demands of global justice have to be distinguished from yet another attempt at creating a variation of a transcendental institutionalism, and it must be seen as the demands for the removal of the most blatant forms of injustice that exist.

There are two ways in which we can measure Sen’s contribution. We can either see it in terms which are immanent -- ie to examine whether he actually manages to succeed in achieving what he has defined as the goal of the book. And this would have to be a test from within the grounds of liberal political philosophy. The other way is to examine the validity of his arguments from outside the framework of liberal philosophy. I will, given the limitations of space, merely gesture to how the book measures up on both counts.

Let’s take the primary aim of The Idea of Justice as articulating a claim for justice, which is not dependent on either, the identification of transcendental principles nor on transcendental institutionalism. I agree with Sen that the focus on an abstract transcendentalism often creates a rhetoric of justice and rights which often tends to be vacuous. What I am less certain about is whether Sen actually manages to move away from a transcendental approach himself. A fundamental disagreement with Rawls’ transcendentalism does not guarantee that Sen will himself not fall into another form of transcendentalism. In speaking of global justice and in identifying principles such as public reason for the establishment of a comparative conversation on justice, it seems unavoidable for Sen to fall back into a transcendental universalism.

Perhaps one way to look at why Sen fails in his attempt at escaping the transcendental trap is to compare his attempt with another attempt at reading Rawls. I am referring here to Stanley Cavell’s refutation of Rawls in his book, Conditions Handsome and Unhandsome: The Constitution of Emersonian Perfectionism. Cavell also begins with a similar premise of wanting to challenge Rawls’ transcendentalism, but the contrast for him is the Emersonian idea of moral perfectionism as a dimension of life in which an individual striving for perfection speaks to the larger question of political institutions. In Emerson, the possibility or necessity of transforming oneself and of one’s society are not distinct questions.

Cavell demonstrates how Rawls’ concept of politics and moral relations assumes that moral relations have already broken down. This is a vice that Sen also shares when he identifies injustice as the starting point of our conversations. The remedial approach to the world often implies some kind of critical distance from it. In other words if one is to move away from a transcendental approach, one has no choice but to engage with motives and aspirations, or the entire world of sentiment. Sen does recognise other affective modes including anger as the basis for a sense of injustice, but too easily collapses them back into the world of public reason.

Cavell rightly identifies what he calls ‘political mythologies’ that plague liberalism -- and the need for neatly worked out principles seems to be one of them. Cavell instead follows a different tradition in his understanding of what a conversation of justice may mean. He quotes Nietzsche’s idea that the individual should live his life as the highest exemplar of humanity -- ie the individual is the representation of the unattained but attainable possibility in each of us. This to my mind is a very different engagement with the limitations of transcendentalism than the replacement of social contract with social choice theory that Sen offers us. Cavell does not present us with a competing political theory, what he seems to offer us is a competing political vision, which is in turn dependent on a competing political sensibility, requiring us to answer the fundamental question of what it is to perceive ourselves as political beings. My disappointment with The Idea of Justice is that it seems to offer us a competing political theory, but not necessarily a competing political vision.

Why has the opposition to the Congress in Maharashtra always been so weak?

The Maharashtra elections results can't be explained by Raj Thackeray alone, as I argue in this opinion piece in today's Indian Express. The larger question is why the opposition to the Congress in Maharasthra has historically been so lame. Another question, which my piece doesn't answer, is why certain states (Maharashtra, Andhra Pradesh for instance) have a historic legacy of the Congress being associated with certain dominant castes (Marathas and Reddys respectively) that gives them such a head start. Any thoughts?

Monday, October 26, 2009

Judicial Ideology and Reservations

K. Balagopal, in his last article in the EPW castigates the Supreme Court's jurisprudence on reservations. He frames the problem as one of judicial indiscipline influenced by "ideology".

He argues that the Indira Sahwney decision had settled most questions concerning the constitutionality of reservations particularly for OBC's but certain judges of the Supreme Court have persisted in reopening questions decided by a 9 judge bench.

The main offendor is the the two judge bench reference of Justice Arijit Pasayat and Lokeshwar Singh Panta to the constitutional bench in the Ashok Kumar Thakur case. The reference raised 31 questions "almost all of which were answered in the Mandal Commission case and indeed even much before that". The only new question in Ashok Kumar Thakur was whether Parliament by law could direct private educational institutions to reserve seats for OBC's. A question he notes was answered by only one of the five judges. Instead of returning the reference on the ground that there was no challenge from private educational institutions, he argues that the court proceeded to "read the Mandal Commission judgment tendentiously, genuflecting with due respect, but glossing it in a manner that leaves the door open for a reversal in good time".

For instance, he discusses the changed interpretaion of the creamy layer definition.
" Thus, the removal of creamy layer is no longer a matter of purported justice within the community as between the more backward and the less backward amongst it, as it was in the Mandal Commission case, but a necessary prerequisite for the caste to at all be a class, and a fortiori a backward class. This is a very significant conceptual revision, effected silently by a majority of this five judge bench in a reference that was unnecessary in the first place."

Balagopal also protests the insertion of economic criteria as a necessary definition of backwardness from only one of many criteria. He then proceeds to take issue with the various ancillary comments the judges made on questions that had not even been raised in the reference.

His framing of the problem as one of ideology and of "judicial indiscipline" is in some ways a novel one. Several commentators in this group have been noting how the Supreme Court on occasion fails to follow its own precedent, and this might be an useful moment to revisit the debate.

On the question of ideology I also wanted to flag Anuj Bhuwania's posting on caste and the higher judiciary.

Sunday, October 25, 2009

The Civil-Criminal Ratio Puzzle

Commentators have often noted that the High Courts, District Courts, and other subordinate courts are rarely systematically studied in India. In such a large country, it's difficult to easily make many statements about what is going on in these lower courts. One way to attempt to (relatively easily) study these courts is to look at the statistical data available about them. The Supreme Court issues quarterly reports about the pendency, institution, and disposal numbers in these courts (which is forwarded to them from the High Courts). The data is fairly basic, but it does separate out civil and criminal cases from each other.

Chief Justice Balakrishnan commented yesterday at a national consultation for reducing pendency and delays that:
“the litigation rates in the various States do not bear a consistent correlation with their respective populations. This means that in some States, a large proportion of the population has been approaching the courts as compared to other States. What is especially worrying is the immense disparity between the number of civil and criminal cases instituted in backward and insurgency-hit areas.

A perusal of the pendency figures indicates that while there are more civil cases filed in developed areas, the reliance on the civil justice system is shockingly low in Bihar, Jharkhand, Chhattisgarh, Jammu and Kashmir as well as the northeastern States. This disturbing trend could have two explanations — one, that the number of courts is grossly inadequate, and secondly, ordinary citizens are consciously not bringing their civil disputes before the judicial system. If the second of these explanations holds good, then it indeed calls for targeted interventions.”

I agree with the Chief Justice that there are striking differences between civil/criminal pendency figures across states in the country and the rates that the judiciary is being accessed by the population. I also think he is generally right that filing rates and low civil/criminal filing ratios are correlated to backward and insurgency areas, but there are outliers that deserve further investigation. Indeed, the picture is a lot more murky when one looks at the statistics, which indicates either the statistics are inaccurate or we need to have more detailed studies and theorizing about this issue.

Let's take up the question of filing rates to population first. In India on average in 2008 for every 616 people one case is filed in a High Court. The five best state ratios in 2008 (if you think more litigation is a good thing) are Himachal Pradesh (239); Madras (258); Kerala (388); Orissa (431); and Jammu and Kashmir (471); the five worst are Assam (1300); Chattisgarh (1198); Andhra Pradesh (1127); Jharkhand (1032); and Calcutta (908). Orissa and Jammu and Kashmir being in the top five might be a surprise and Calcutta and AP in the bottom five as well, but more or less the statistics seem to show some correlation between development and filing rates at the High Court level.

If we look at the district and subordinate courts amongst the best are Delhi (27); Kerala (30); Himachal Pradesh (39); Madras (40); and Gujarat (41). Amongst the worst are Bihar (245); Jharkhand (220); Orissa (134); AP (114); and Chattisgarh (94). Again, the correlation seems to hold up and we might assume that if we average out a few years the correlation might even get stronger and potential anomolies (Orissa being in the best for High courts and worse for subordinate courts) might even out. Generally, the states with poor filing rates also have poor judge to population and judge to filing ratios, so one could argue there is a supply side deficit that's effecting the demand. These results are somewhat interesting, but not particularly surprising, although if certain anomolies (like Orissa) remained that could call for further study.

Now let's turn to civil and criminal ratios. Nationally the civil/criminal ratio in H. Ct.'s is about 66%/34% in 2008. The CJI suggests that if the civil rate goes too low that might be an indicator of broader trouble with that court and citizens are deciding not to turn to it for civil redressal. For example, in Bihar the civil/criminal ratio is 32/68 for the High Court. Meaning 32% of the cases filed were civil, while 68% were criminal (this is a whopping 34% off the national average). Bihar has the worst ratio that year (again, if you think that a low civil filing rate compared to criminal is a bad thing). Following Bihar were Jharkhand (36/64) Punjab and Haryana (55/45), Gujarat (57/42) and UP (59/41). The "best" civil/criminal ratios were in Jammu and Kashmir (92/8), Himachal (86/14), Karnataka (85/15), AP (81/19), and Bombay (81/19).

In the subordinate courts amongst the worst were West Bengal (11/89), Jharkhand (14/86), Bihar (15/85), Chattisgarh (16/84), and Uttarkhand (16/84). Amongst the best were TN (51/49), AP (64/54), Karnataka (34/66), Himachal (33/67), and Delhi (25/75). Here the surprises would be finding Jammu and Kashmir as having the best ratio on the High Court side, and finding Punjab and Haryana and Gujarat amongst the worse ratios. In the subordinate and district courts having West Bengal have the worst ratio comes as a bit of a surprise, along with Uttarkhand being towards the bottom.

You will notice that there seems to be some correlation between having a high filing rate for ones population and a good civil/criminal ratio. AP is the outlier here having a poor filing rate, but a very healthy civil/criminal ratio.

Further, 3 out of 5 of the top and bottom scorers in filing rate in the High Court also scored in the top or bottom 5 in the subordinate courts. For the civil/criminal ratio the correlation was only 2 out of 5 of each the bottom and top bracket. Indeed, the civil/criminal ratio seems to be more murky overall, often following development indicators, but not as tightly as the filing rate. For example, Delhi and Chattisgarh High Court have about the same civil/criminal ratio (67/33), but per capita income in Delhi is about 4 times as much. Something else seems to be at work here - i.e. development is an ok indicator of a court's civil/criminal ratio, but there seems to be some other factor (or several other factors) as well.

Even if we accept development as the primary driver of the civil/criminal ratio it's not perfectly clear what about development drives the ratio. For example, is it that as the CJI suggests in under-developed states litigants aren't as likely to bring their civil suits to court (presumably because either they don't think the court can efficiently or fairly deal with them, or they can't afford the court)? Is it that there just aren't as many civil suits because there isn't much economic development? Is it that there is higher crime or more criminalization of activity by the state? Is it that development is correlated to a lack of judges and so it's a supply side issue? I would be possible to get a satisfactory answer with some more crunching and hopefully the proposed National Arrears Grid will be able to shed more light on these sorts of questions.

Wednesday, October 21, 2009

Socio Legal Review : Call for Papers

About the Journal

The Socio-Legal Review (SLR) is a student-edited, peer-reviewed interdisciplinary journal published annually by the Law and Society Committee, National Law School of India University, Bangalore. The Journal aims to be a forum that involves, promotes and engages students and scholars to express and share their ideas and opinions on themes and methodologies relating to the interface of law and society. SLR thus features guest articles by eminent scholars as well as student essays, providing an interface for the two communities to interact.

The Journal subscribes to an expansive view on the interpretation of “law and society” thereby keeping its basic criteria for contributions simply that of high academic merit, as long as there is a perceivable link. This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/ institutions of governance/administration, power structures in social commentary and so on. Through this effort, the journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students.

For more information on the Journal please visit

Socio-Legal Review welcomes contributions for its sixth volume to be released in 2010.

Submission Guidelines

1. All contributions submitted to the journal should be original and should not be simultaneously considered by any other publication.

2. The Editorial Board has refrained from imposing a theme. A submission is welcome as long as it fits within the general mandate of the Journal, as outlined above.

3. Contributions should be mailed only in a soft copy to, the subject of the mail being ‘Submission for 2010 volume’. Biographical information is to be provided in a removable title page.

4. The Journal is accepting contributions for Articles and Short Articles. With reference to Articles, contributions should not ordinarily exceed 8000 words. With reference to Short Articles, contributions should not ordinarily exceed 3000 words. The Editorial Board reserves the right to reject without review manuscripts that exceed the word limit substantially.

5. The last date for submission is January 31st, 2010. Submissions may, nevertheless, be made after this date. They will be considered for publication in the next volume.

6. All submissions are to be made via e-mail as .doc documents (preferably Microsoft Word 2003).

7. SLR follows the Harvard Blue Book – A Uniform System of Citation (18th edn.) style of referencing. Contributors are requested to comply with the same.

8. For any clarifications, please mail us at

Tuesday, October 20, 2009

Book Reviews: Courts & Governance

My review (rather comparison) of Madhav Godbole's new book, Judiciary & Governance in India with Searching for Success in Judicial Reform, an edited volume brought out by Asia Pacific Judicial Reform Forum. While Godbole's book is that of a critic, the APJRF book is something of an apologia. I found Godbole's book useful especially for compiling PIL cases filed across India. For those intending to write a follow-up on the PIL cases in the light of the SC decision (and after) in the Aravali case, it may be the right book to start with. Readers, looking for an exhaustive and comprehensive analysis of these cases, will however, find his book disappointing.

The non-appointment of Justice Dinakaran

It is now official that the SC collegium will delink Justice Dinakaran from the other four Judges whom it recommended for appointment to the Supreme Court. I was amazed to read this story in TOI wherein a highly placed source has claimed that the collegium always keeps an open mind about its recommendations. Is that so? Then, why is it that the SC Collegium keeps its recommendations under wraps rather than disclose it through a press release? In this article in Frontline, I suggest that but for The Hindu's August 27 story on the collegium's recommendation, obtained through its exclusive sources, the Forum for Judicial Accountability would not have gathered the allegations against Justice Dinakaran and forwarded it to the Collegium. In other words, the Collegium owes it to the media for bringing to its notice that one of its recommended appointees has a controversial background which needed to be probed. Had The Hindu not carried the story on collegium's recommendations, the allegations would not have come to light, and the collegium would not have got an opportunity to review its decision. Therefore, if the Collegium indeed has an open mind, it must resolve to release its recommendations formally to the media, so as to subject the appointees to public scrutiny.

In my article, I also deal with the issue of non-consultation by the CJI with a senior SC Judge hailing from a State from which the appointee also hails. In this case, the present Collegium appears to have interpreted the 1993 SC Judgment in the Second Judges case narrowly by suggesting that a senior Judge from Karnataka (Justice Raveendran) was consulted, whereas two senior Judges hailing from Madras High Court were not consulted, even though Justice Dinakaran had spent much of his tenure there.

Monday, October 19, 2009

The recusal controversy & the facts

I invite readers' attention to Rajeev Dhavan's article in Mail Today on when and why Judges should recuse themselves from hearing a matter. The news peg for the article is certainly Supreme Court Justice S.H.Kapadia's admission while hearing a matter concerning Sterlite that he held shares in that company, but continued to hear the matter when the counsel expressed no reservations about his hearing it.

Dhavan claims he cast no aspersions on the Judge. But he is also categorical that it is not fair for a judge to ask lawyers whether he should recuse himself from a case. "No lawyer can truthfully answer such a question either on his own behalf or on behalf of a client. It is a question that the judge himself can answer. To pass this on for advice from a lawyer in the case is self- defeating", he says. He adds: "If a judge has shares in a company, and a case comes before him which affects the company’s prospects and standing, the judge should refuse to hear the matter. This should be a case of automatic recusal."

Dhavan's conclusion that this article is not about Justice Kapadia or Vedanta case - after ruling out the application of doctrine of necessity to Justice Kapadia - is indeed surprising, if not perplexing. My enquiries reveal the following:

* Justice Kapadia made this admission of his holding shares in Sterlite while being part of the Forest Bench on October 26, 2007 when Sterlite was not yet a party. It was only in 2008, the Vedanta project in Orissa was handed over to Sterlite in this case.
* Since it was a PIL matter, there was no adversarial party in this matter; hence, no question of that party expressing reservations about the Judge's disclosure.
* The tribals, the aggrieved parties in this case, and who were against the refinery project, were not heard by Justice Kapadia, because they were parties to the Central Empowered Committee, which also recommended against the Centre's approval to the project. Read this TOI story by Manoj Mitta recently.
*The Vedanta case was being heard from May 3, 2005 and according to some observers, Justice Kapadia disclosed his interest on October 26, 2007 rather inadvertently.
*The controversy over conflict of interests would not have become public, but for the interview Mr.Prashant Bhushan gave to Tehelka. According to reports, the Supreme Court has given permission to Mr.Harish Salve to seek AG's consent to issue contempt of court notice to Mr.Prashant Bhushan for this interview, if there is no apology forthcoming from Mr.Prashant Bhushan and Tehelka. An apology from them appears unlikely. Therefore, we are sure to hear more on this controversy in the coming weeks.

Relevant links:
*Shamnad Basheer's post on Justice Katju's recusal
*Justice Dalveer Bhandari in the Punjab Civil Service case.
*Justice Sinha's judgment in the Punjab civil services case
*Harish Salve, retainer for Vedanta, admits to have continued with the matter (as amicus)despite having shares in Sterlite, after Forest Bench told him there was no problem. Once Mr.Salve became the retainer for Vedanta after having served as the amicus,the Court appointed the Junior amicus, Mr.Uday Lalit as the amicus in the case.

Wednesday, October 14, 2009

Legal History Moment: The Case of the Diligent Diplomat

C.B Muthamma passed away today. She was the first woman to have joined the Indian civil service in 1949. She became a part of Indian legal history when she challenged the Foreign Service Rules which required women members to give an undertaking that if they were to get married, they would resign from the service. Even if she were given permission to marry, she could be required to resign any time after marriage if the Government is satisfied that her family and domestic commitments will hamper her duties as a member of the service

Ms Muthamma had not married, yet she found herself superseded on several occasions by those junior to her. In her writ petition she detailed systemic discrimination against women by the Union Public Services.

"Even at the very threshold when the petitioner qualified for the Union Public Services at the time of her interview, the Chairman of the U.P.S.C. tried to persuade (dissuade) the petitioner from joining the Foreign Service. On subsequent occasion he personally informed the Petitioner that he had used his influence as Chairman to give minimum marks in the viva. As the time of entry into the Foreign Service, the petitioner had also to give an undertaking that if she were to get married she would resign from the service."

Interestingly enough these rules had remained in force till 1979, prompting the court to remark "that the writ petition, bespeaks a story which makes one wonder whether Articles 14 and 16 belong to myth or reality."

Muthamma's writ petition was not just an individual case but was prompted by decisions taken by the Janata Government that affected a large number of women diplomats. As Monobina Gupta , recounts one of the first instances where the 40 odd female IFS officers mobilized against directions sent to female diplomats by the Janata government in 1979.

Justice Krishna Iyer found the government rules misogynistic and held that "If the family and domestic
commitments of a woman member of the service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member … If a married man has a right, a married woman, other things being equal, stands on no worse footing. Freedom is indivisible, so is justice.”

C.B Muthamma went on to serve as Ambassador to the Netherlands, Hungary and Ghana. India today has its second female Foreign Secretary.

Tuesday, October 13, 2009

Mashelkar Report Version II: Wrong Again

Sudhir Krishnaswamy has authored an engaging article on the second Mashelkar Report tilted "Mashelkar Report Version II: Wrong Again". The article is forthcoming in the Economic and Political Weekly and can be downloaded here. The abstract is as follows:
"The government’s acceptance of the second version of the Technical Expert Group Report (hereafter ‘TEG Report’) headed by RA Mashelkar has been followed by a shrill sustained campaign that seeks to assert the truth of the Report’s claims by merely proclaiming it from every available forum. Any criticism of the Report is met with a strong chorus of denunciation usually ascribing poor intellectual abilities, bad motives, Orwellian sophistry or all of these. This campaign has assumed Goebbelsian proportions and poses a grave risk to rational and empirically grounded public policy formulation. I have commented elsewhere on the dangerous implications for public policy making that the process adopted by the first Technical Expert Group Report represents. In this essay, I respond to the TEG’s Second Report and argue: first, that its recommendations are not warranted by the TRIPs agreement; secondly, that it is not supported by the weight of academic opinion; and thirdly, that these conclusions do not rest on any reasonable assessment of the national interest in pharmaceutical policy. "

Sunday, October 11, 2009

Naz Foundation and the "Order of Nature": Nurturing Vagueness in the Law?

Vikram undertook a thorough and incisive review of the Delhi High Court decision in the Naz Foundation case in three remarkable posts on this blog. Since then, Arvind Narrain and Marcus Eldridge of the Alternative Law Forum (ALF) put together a very useful anthology of writings that help explain the decision from various perspectives.

What I wish to do in this post is to open up the phrase "against the order of nature" in section 377 for some collective introspection. And in the process, to reflect on the constitutional and societal implications of retaining such a phrase in the Indian Penal Code (IPC).

Legal Options for Naz:

While attempting to decriminalise same sex activities between consenting adults, Naz Foundation had two options:

i) Argue that the term "order of nature" itself is inherently vague and arbitrary and ought to be struck down under Article 14.

ii) Argue that any criminalisation of same sex activities (in the private sphere) violates the right to privacy and dignity under Article 21 and is discriminatory under article 14 and 15.

For strategic reasons, Naz Foundation followed the second option above. And the judges endorsed this line of reasoning. The net result of the judges' finding is this: although same sex activities may be "against the order of nature", they cannot be penalised, since they are between consenting adults who have the right to privacy and dignity under Article 19 and the right to equality under Articles 14 and 15.

This however begs the question: ought such activities to be construed as contravening the "order of nature" at all? Commentators have pointed out that Naz does little by way of eradicating the social stigma of homosexuality. Their concern is buttressed strongly by the implication that these activities are still "against the order of nature". Indeed, Justice Verma, who wrote a guest post for this blog may be right that the Delhi High Court judgment does not legitimise homosexuality. In fact, it continues to condemn it by labelling it an "unnatural" sexual activity.

Defining the "Natural" Order

One needs to ask: What exactly is the "order of nature"? Who defines what is "natural" and what is not? Homosexuality has been documented in almost 1500 species, who unfortunately are not blessed with rational capabilities (and the propensity to "nurture" same sex thoughts) as are found in mankind. See this interesting article which documents the above statistic and tellingly notes:

"No species has been found in which homosexual behaviour has not been shown to exist, with the exception of species that never have sex at all, such as sea urchins and aphis."

The current understanding of section 377 (a Victorian understanding that the court in Naz does not really overrule) is that anything barring "procreative sex" is against the order of nature.

Under this logic, using a condom would be against the order of nature. And fellatio. Perhaps one might even suggest that barring the "missionary" position, all other positions of copulation are against the "order of nature". Incidentally, the Kamasutra describes more than 50 different ways of lovemaking and notes: "If variety is sought in all the arts and amusements, such as archery and others, how much more should it be sought after in the art of love."

Further, our Khajuraho temples abound with all sorts of "unnatural" sculptures likely to bring many a blush to the face of the prim and prudish.

Isn't the usage of "natural" in the context of private sexual preferences inherently vague and arbitrary? Wouldn't this be similar to asking: is it natural to bathe in the morning? Or at night? To bathe everyday? Or once a month? In any case, does the state have any business regulating such activities in the private sphere?

Article 14 Violation?

From a constitutional perspective, wouldn't the phrase "order of nature" in section 377 be indeterminate, vague and arbitrary and therefore militate against the spirit of Article 14? One may of course argue that the threshold for establishing "arbitrariness" for the purpose of Article 14 is a very high one and may not be easily satisfied. Or even go to the extent of questioning (as Seervai does) that Bhagwati J's separate doctrine of arbitrariness "hangs in the air" and has no place within Article 14.

However, even assuming this to be the case, a problematic "natural vs unnatural" distinction is likely to flunk the traditional Art 14 test of reasonable classification. Firstly, terms such as "natural" and "unnatural" are difficult to define in the context of sexual preferences, and may therefore be devoid of any "intelligible differentia". Secondly, the alleged differentia appears to have no reasonable nexus to the object sought to be achieved by the legislation. To reiterate a point made earlier, the state has no business regulating private sexual preferences between consenting adults.

Even if a large part of society balks at homosexuality, that by itself, is not sufficient reason to criminalise it. Consider the act of "lying". Though morally repugnant, one would balk at the idea of sending someone to jail for this (barring in limited cases such as perjury).

Unfortunately, striking down the entirety of section 377 owing to the indeterminacy of "order of nature" would decriminalise problematic sexual activities such as paedophilia. And this fear may have promoted the Naz Foundation lawyers to adopt the strategy that they did before judges who were far happier reading down section 377, than decapitating it by stripping it of its "unnatural" essence.

Law Commission Recommendations

But that still leaves us with the condemnation of homosexuality as breaching the "order of nature". Perhaps the optimal solution is to do what the Law Commission recommends--to abolish a vague and indeterminate section 377 and to penalise paedophilia and other problematic sexual activities through a separate provision (section 376E). After all, it is but logical to assume that the criminalisation of paedophilia does not need to hinge on its problematic labelling as an "unnatural" sexual activity.

Interestingly, while the law commission carefully details out various sexual activities that ought to be penalised under the new section 376E, it leaves out "bestiality", curiously noting that "...we may leave such persons to their just deserts". What exactly are these "just deserts"? Some karmic consequence that one committing such a heinous act may be reborn an animal and subjected to the same treatment?

In any case, till the law commission report is implemented, Indian homosexuals will have to contend with living "unnatural" lives. Not a bad place to be in, given that morally superior "monogamists" have also been accused of breaching a similar "natural order".

Saturday, October 10, 2009

Online Symposium Starting Tomorrow on Judicial Review of Anti-Terrorism Legislation

The Indian Journal of Constitutional Law will have an online symposium tomorrow October 11th. Prof. Kent Roach's "Judicial Review of Anti-Terrorism Legislation: The Post-9/11 Experience and Normative Experiences for Judicial Review" is the centerpiece to the Symposium.

Christina Eckes from the Amsterdam Centre European Law and Public Policy, University of Amsterdam, Shylashri Shankar from the Centre for Policy Research, and Aparna Chandra from the National Law School, Bangalore, will be respondents to the piece. Others are also encouraged to contribute their comments over the coming days and/or simply join to watch (or rather read) the discussion. I'm sure it will be a lively debate. I have never actually "attended" an online symposium and am looking forward to doing so.

Friday, October 09, 2009

Does the state have a monopoly on violence?

The targeted kidnapping and beheading of a Jharkhand police inspector, almost certainly by Naxalites, is seen as taking the conflict to a new level. Chhattisgarh-based doctor Binayak Sen (whose judicial travails this blog closely followed here, here and here ) disagrees. In this interview with me, he argues that a) this level of brutality is not new, and b) Naxal violence is only a consequence of state violence. What I wanted to explore further is his insistence that state violence and Naxal violence are equally illegitimate. I pointed out that state violence against him at least had the check of a judicial process, lawyers, and finally bail. But the violence that the Naxals inflicted on the Jharkhand inspector had no semblance of 'due process'. Binayak Sen replied that what the state had done to him was hardly representative. I'm sure there is an extensive body of research on this. Any political theorists out there -- on the legitimacy of democratically-sanctioned violence?

The Passing away of a Hero: Goodbye Balagopal

A sense of irony is the only way for me to describe how I felt when I heard about Balagopal’s death. Ordinary people leading ordinary lives die of heart attacks. And despite the simplicity with which he led his life and interacted with people, every time one met Balagopal or heard him you always knew you were in the presence of someone extraordinary. Whenever he left after any meeting, Balagopal left you a little scared about whether you would ever see him again. As a result of the position that he took- against the violence of the state as well as the violence of the Maoists, you were always left with the lurching fear that any point of time, you would be given the news that Balagopal had been killed in an encounter.

At the same time it is perhaps not surprising that despite living a life which was scripted towards a violent death, it was only appropriate that his death transcended any partisan act of violence. Film maker Deepa Dhanraj captures the essence of Balagopal when she describes him as a ‘moral force’ whose authority emerged from the integrity with which he led his life and the courage with which he stood by his belief. If Balagopal was a regular anti violent activist or a pacifist, then there would have been nothing surprising about his stance on violence, and to argue for the importance of non violence would hardly be an act of courage. But for someone who had spent a better part of his life in struggles, and in battles against the impunity of the state, the commitment to an ethical position on violence becomes a deeply ethical choice of bravery.

In an ironic way Balagaopal could be seen as a true inheritor of the Gandhian legacy, of leading a particular kind of life, and through such a life aspiring to change the world around you. In an interview with Janam Saxi, Balagopal once stated “The Indian constitution has had a habit, right from its inception, to destroy democratic values completely in practice without any recourse to laws. This has grown very much recently. The apparatus of the police is the chief machinery for this destruction. The duty to safeguard democratic values from these limitations is a very important duty……. While performing this duty it is of no use to as the question in this form: is there or is there not at least a bourgeoisie type of democracy”. I can think of very few who followed this duty with the same kind of clarity, conviction and humility as Balagopal did.

The first time that I met and heard Balagopal was in a workshop organized by PUCL in Chennai. I was a young student, and like many young students, whether of the revolutionary or the conservative variety, my main attribute was a nonchalant cynicism. Curiously Balagopal began by speaking of his initial love for mathematics. He did his bachelors, his masters a Phd and even a post doctorate in mathematics, and spoke with immense fondness of his obsession with abstraction. He then moved on to his encounter with various peoples movements and struggles, and his descent from the world of pure abstraction to the very material world of injustice and violence. For those who have heard Balagopal speak and have been amazed by his clarity of thought and analysis, you cannot help but think of how his love for mathematical precision clearly survived in a very different form.

It was one of those moments when you felt you just had to drop everything and follow this man. In a world where the epithet of hero is just too generously used, I can safely say ‘Balagopal you were a hero in the truest sense of the word to many of us’.

And at the same time I cannot help but feel that perhaps this descent from the heights of abstraction to the very ordinary and fragile business of activism is also what marked Balagopal as different from most activists. An abstract transcendental idea of rights was certainly not something for Balagopal, and yet he did not allow himself to be so immersed in the reality of struggles so as to forget any kind of moral claim that may be made of a movement. In an article on moving the debate beyond the terms set by the binaries of violence- non violence Balagopal argued that “To say that one should not be dogmatic about violence may be morally a little unsettling but it is a defensible position even without adopting a relativistic attitude towards the preciousness of life or a casual attitude towards one’s moral responsibility for injury caused in the course of a struggle”.

There will be a lot of time for us to think about ways in which we learn from his life and work, but for the moment let us spend sometime remembering the man who would be found standing outside a meeting venue selling books and pamphlets before he proceeded to go to the podium to make the most insightful speech you were likely to hear. Let us remember the man who when told that finally Justice Pasayat had retired, remarked that it was unfortunate that his decisions would not be retiring with him, and let us remember him most importantly in the days to come when violence and non violence will be offered to us again to choose, as though it were a real choice. Goodbye Balagopal, we will miss you immensely but thank you for giving us the freedom to not have to make false choices.

Thursday, October 08, 2009

Follow-up on Judges' assets case

The Delhi High Court has admitted the Supreme Court's appeal against Justice Ravindra Bhat's Sep.2 judgment in the assets case. LAOT's earlier posts can be read by clicking the label, judges' assets. I found the following newspaper reports on yesterday's proceedings in the HC useful for the purpose of record, and following-up: Mail Today, TOI and IE1 and IE2.

LAOT supplements: The counsel for the respondent, Prashant Bhushan urged an early and speedy hearing on the matter because the Court's reputation was at stake, and that the issues involved were very simple, and would not take time to resolve. He also questioned the Supreme Court's decision to appeal as it tended to lower the image of the Judiciary in the eyes of the public. The A-G, while replying to his contention, said that the Court was well within its rights to appeal against the September 2 judgment, without being influenced by the public perceptions to the verdict. Earlier, he agreed to amend the appeal, as suggested by the Bench, so that Central Information Commissioner is not mentioned as a party to the appeal. The appeal will now be heard by a 3-Judge Bench of the HC on Nov.12 and 13. It is significant that the Bench made some oral observations questioning the merits of the appeal, which challenged the binding nature of the Supreme Court's 1997 resolution seeking voluntary declaration of assets by Judges.

Tuesday, October 06, 2009

Article 356 & Constitutional Interpretation: A Reply to Shubhankar Dam

In a recent article in the British journal Public Law, Shubhankar Dam critiques the Indian Supreme Court's decision in Rameshwar Prasad. Dam argues that the Court incorrectly identified the stage at which a legislative assembly comes into being. More fundametally, he suggests that the decision “introduced a hierarchy into the Constitution that made a legislative assembly dependent on the executive”.

In the current issue of the Indian Journal of Constitutional Law, Sudhir Krishnaswamy and I respond to Dam. We show how the Court’s concern in Rameshwar Prasad is limited to the chronological sequence in which the executive and legislative wings of government come into existence after an election. We argue that the relationship between the executive and the legislature under the Indian Constitution is not determined by this case but by other well established precedents. Importantly, the significance of the decision in Rameshwar Prasad is the nature of remedies available to a court under Article 356 and demonstrate how Rameshwar Prasad is the strongest application till date of the proposition that courts can review the exercise of power under this provision. The most remarkable aspect of the decision in Rameshwar Prasad is that it confirms that Indian courts can offer a rare public law remedy: the revival of a dissolved assembly. We conclude with some critical observations about the nature of constitutional interpretation in such cases. We propose that constitutional adjudication must proceed by giving adequate weight to justifying reasons which pay attention to the text of the Constitution, the institutional framework and political principles embedded in the Constitution. Judged in this light, the interpretative methodology in Rameshwar Prasad may not be as vacuous as Dam suggests.

Occasional Digest

1. My article, quoting anonymous I.P.experts at Spicy IP and a TTD's advisor, on why the grant of G.I status to Tirupathi laddu is improper. I ask whether it is an instance of use of a secular law for a non-secular purpose. I understand a petition has been filed in Supreme Court challenging the GI Registry's decision.

2.My review of Vasanthi Srinivasan's book on Rajaji. I dwell on the unexplored aspect of Gandhi-Rajaji relationship - especially on why and when the former called the latter as his conscience keeper.

3. Rajeev Dhavan on how Raj Thackeray was allowed to usurp the State's role.

4.A.G.Noorani on Jinnah's case for a Supreme Court. Had Indians united in support of a final court of appeal in 1921, moves for reform of personal laws of Hindus and Muslims would have accelerated, he says.

Thursday, October 01, 2009

Puisne Matters

A quick glance across the web page profiling former judges of the Supreme Court of India left me startled. The list of judges begins with (the famous) Justice Khanna, appointed in 1971, leaving all other judges appointed before him out. Names such as Fazl Ali, Vivian Bose, and indeed the “superceded” Shelat, Hegde and Grover, remain conspicuously absent from the list. Apparently, the desultory law student and deferential lawyer must look elsewhere for the academic or professional paths undertaken by some of the country’s finest former judges.

On the other hand, the list of former Chief Justices of India, from Kania to Sabharwal, seems to be complete; which leads me to my question:does this say something about our shared understanding of the judiciary in India? Chief Justices are administrative (but not judicial) superiors - but their position is still one of significant prominence in comparison to other justices. They enjoy considerable powers in the assignment of judicial work (each judge's assignment is determined by the Chief Justice). Law students often observe that the Chief Justice's courtrooms and chambers are 'grander' than the rest in the Supreme Court. Court staff often preface the words "Chief Justice" with the word "Honourable" while referring to him (I say "him" since the Supreme Court has not yet had a female Chief Justice, and the High Courts have had very few), while puisne judges don't necessarily get the same treatment. Here's a question: how many times has the Chief Justice of India been in dissent in the recent past? Without venturing into questions of controversy, it would be instructive to ask: does the Chief Justice of a court, whose office is arguably more visible than others', rightly speak for the entire judiciary?