Sunday, November 29, 2009

Have We Wasted 26/11?

In an opinion piece in the Indian Express, I review the structure of the National Investigative Agency (NIA) set up after 26/11. Will it help us to prevent another 26/11? The structure of the NIA is extremely weak and inadequate. In an earlier op-ed piece, I examined how the Constitution gave wide powers to set up the NIA and the Centre was wrongfully blaming the Constitution.

Saturday, November 28, 2009

Communal Violence Bill

The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, in cold-storage in Parliament since 2005, was referred to in the Centre's Action Taken Report on the Liberhan Commission recommendations. Could this Bill have prevented the demolition of Babri Masjid? No, I argue in this opinion piece in today's Indian Express; the Bill curtails state government rights, with few corresponding benefits.

Tuesday, November 24, 2009

Questions over Justice Kapadia's non-recusal

In the latest issue of Tehelka, the SCBA president, Krishnamani seeks to defend Justice S.H.Kapadia, who is in the centre of the controversy over conflict of interests. (Courting Controversy) Prashant Bhushan's reply to Krishnamani also appears on the same page.

Friday, November 20, 2009

Reflections on commentary on the Recusal issue

Commentators on the previous post have drawn attention to the fact that more commentary on the recusal issue is now available. Since the last post was written, Soli Sorabjee and Rohit Sharma have also weighed in on the ongoing discussion. The former's view seems quite close to that offered by TR Andhyarujina. Although there are some differences, I see a certain consistency in the opinions offered by practicising lawyers (here I include those offered by Rajeev Dhavan and PP Rao) on this issue. As Nick Robinson puts in it in the comments section of the previous post:

" Is over-zealous recusal really a problem in India? It seems the opposite is true. So why this sudden rush to defend, particularly by the bar?"

Practicing lawyers in general seem to be quite sympathetic to the 'plight' of the judges who've been 'wrestling' with the ethical issues involved in these recent recusal cases in India. I wonder if this is because of a professional 'blind spot' that they, together with the judges involved in these cases, might be collectively suffering from? Notice that several practicing lawyers seem to think that if the judge discloses his potential conflict to the 'parties' in open court, and the lawyers (speaking on behalf of the 'parties' presumably, but perhaps speaking in their own capacities as well) state that they have no objection, no other concerns are raised, and the judge can go ahead with the hearing of the case. To those who are not lawyers, and to those of us who don't practice in courts and are hence not part of this cozy - and much glorified - 'bar-bench' dynamic, this begs the larger question of the public interest that may be compromised when judges proceed to so hear cases after getting the approval of the lawyers in the case.

Even Dhavan, who recognises the problems with the scenario set out above, does not seem averse to giving lawyers a final say on the integrity of a judge. Although he argues that the cases involving Justice Kapadia should have been treated as situations of automatic recusal, he also says this in his column:

"An irresponsible controversy was raised about Justice Kapadia participating in the controversial Vedanta case where he was a member of Forest Bench which allowed the mining of bauxite in Orissa in a eco- sensitive tribal area subject to various concessions and conditions. I say the controversy was irresponsible because I must candidly state, that Justice Kapadia is an upright judge whose integrity is unquestionable." (Here, Dhavan seems to be taking a dig at Prashant Bhushan who first raised the issue; Andhyarujina too seems to disapprove of Bhushan's actions, referring to him rather quaintly as "a leading vigilante lawyer").

Why should the general public have to take Dhavan's word on Justice Kapadia's integrity? If, as he argues, this was a case of automatic recusal, then the judge should have recused himself - end of discussion. Why must we rely upon, to borrow Sorabjee's words, "gratuitous advice of distinguished senior counsel"? (Sorabjee, of course, was alluding to the fact that in the latest episode of this now bizarre and continuing saga, Justice Kapadia deferred to Fali Nariman's counsel to recuse himself from an ongoing case).

Almost every commentator focuses on the practical difficulties that apparently will flood us if the general public were to ask that judges not simply seek a 'waiver' from counsel who appear before them in cases where potential conflicts of interest may arise, and that they subject themselves to higher standards that the high constitutional offices they occupy demand. In my view, these practical difficulties (and some of the ones identified are real concerns) can be avoided by some minor systemic changes. In any case, the cost of continuing with the status quo will be very high, especially if one were to consider the historical moment our judiciary finds itself in, and the deep crisis of legitimacy and credibility it currently suffers from.

Several of the commentators who have weighed in on this issue rely upon practices and cases from the UK and the US. We must remember that those judiciaries have not suffered from a crisis of credibility for a while (in the US, the last major crisis regarding possible financial corruption in the Supreme Court concerning Justice Abe Fortas occured in 1969). In India, the setting is entirely different. We are yet to resolve the deeply troubling issues involving former Chief Justice YK Sabharwal, Justice Soumitra Sen and Justice Dinakaran (to name only the most prominent of the several crises that our judicary has undergone in the recent two years). The Supreme Court's stance that it is not bound by the Right to Information Act gives further impetus to the growing impression that our judges seem to think that they are somehow above norms that apply to ordinary citizens, government employees and other actors.

This series of events in India must be viewed against this sobering backdrop. If Indian judges hide behind 'bar-bench' conventions, instead of taking accountability for their own actions, they will not help their already diminshed standing among the general public.

Thursday, November 19, 2009

The Recusal issue and Justice Scalia's memo

This short post seeks to reflect on the way comparative references have been used in the recent debate on judicial recusals in India. It is becoming clear that our judiciary needs to urgently formulate an official policy on recusals, given the alarming frequency with which problem cases are arising in the Supreme Court alone.

Two of the more insightful pieces of commentary on the issue - by Vivek Reddy and TR Andhyarujina - make references to the unusual memorandum issued by Justice Scalia in March 2004 in what has come to be known as the 'duck hunting' fiasco. Both these commentators do not expressly endorse the views expressed by Justice Scalia in the memo, but they quote portions of the memo approvingly (in the first and last paragraphs of their respective op-eds).

I am quite intrigued by this, because I do not think Justice Scalia's memorandum sets down a standard that is at all persuasive or worthy of emulation. In fact, after reading it, I was even more convinced that Justice Scalia should have recused himself from the case he discusses. (This was especially because, as highlighted here, Justice Scalia went on the duck-hunting trip three weeks after Vice-President Cheney's controversial case was taken up by the Supreme Court).

The full text of the now famous memorandum is available here, and it makes for stimulating reading, given Justice Scalia's noted skill for punchy, combative judicial writing. But good, absorbing writing doesn't always make for persuasive legal reasoning. When the memorandum was issued, it was met with a storm of criticism, and a number of law review articles were authored deconstructing the logic and legal reasoning employed by Justice Scalia (these should come up on a search on any good database of American law). Constraints of time do not allow me to spell out my reasons, but I hope readers will be able to make up their own minds on the persuasive value of Justice Scalia's views by reading through his 21-page memorandum for themselves.

South Asia Media Summit - 2009

The International Centre, Goa, in collaboration with Media Information and Communication Centre of India (MICCI) and Friedrich Ebert Stiftung (FES) is organising the three-day Annual Media Summit at the International Centre,Goa from Nov.20-22. The subjects of sessions are of considerable interest to our readers.

Session I : Fighting Poverty with Democracy: Are the two incompatible?
Session II: Electoral Processes in South Asia: Need for Reforms
Session III: Has Judiciary Failed Democracy in South Asia? Need for Introspection
Session IV: Engaging Youth in Strengthening Democracy: A Long neglected Step
Session V: Do the Police Undermine Democracy: Some Harsh realities in South Asia

Wednesday, November 18, 2009

Education: Science or Humanities or both?

This article makes a case for humanities education in our times when governments only see the instrumental value of education. Pratap Bhanu Mehta's column on proposed reforms in the Delhi University will also interest readers.

Scope of judicial activism

Today's newspapers have carried reports on how Justices Markandey Katju and Asok Kumar Ganguly advanced two entirely different reasons to make a reference to Constitution Bench to determine whether Courts can legislate. Both the orders can be read on the
Supreme Court's website. (University of Kerala v. Council, Principals' Colleges, Kerala & others, decided on November 11, Civil Appeal No.887 of 2009. 35 pages)

Book review

Here is my review of D.C.Wadhwa's Endangered Constitutionalism. I was surprised to know from the book that the Centre has, so far, repromulgated only one ordinance, POTO, and that too in 2001. A fascinating book on the challenges a PIL petitioner faces.

The recusal debate (continued)

T.R.Andhyarujina has written in today's Hindu, on the conflict of interests controversy. Andhyarujina is among those who feel that the expectation that the Judges should avoid all conflicts of interest (including those apparently remote) will lead to absurd results. In this article, I deplore the lack of consistency in the Supreme Court's approach in either the assets or conflict of interests issues. In particular, I try to explain that two of the Supreme Court's claims on the assets issue - that they have complied with the 1997 Resolution and that the Judges have declared the assets voluntarily - are both inconsistent with facts and reasoning.
In today's Economic Times, Mukesh Butani, like TRA, identifies practical difficulties in blind adherence to the principle of recusal.

Friday, November 13, 2009

PIL Increasingly Favouring Advantaged Groups

Varun Gauri has a new paper out that systematically goes through all public interest litigation decided by the Supreme Court since the 1980's. As Gauri writes "the analysis finds that win rates for fundamental rights claims are significantly higher when the claimant is from an advantaged social group than when he or she is from a marginalized group, which constitutes a social reversal, both from the original objective of public interest litigation and from the relative win rates in the 1980s."

I hope this stirs even more debate about what the purpose of PIL is. If it is primarily for disadvantaged groups that often have difficulty securing their rights through India's other political institutions then how can the Court get back to focusing on this goal. Unfortunately, the details of all these cases aren't readily available from the Supreme Court so it's difficult to come to too many conclusions about why this trend has happened - i.e. is it the quality or type of claims being brought by the respective groups that accounts for some of this change. However, the paper does broadly support those critics of the Court who say it now has a middle class bias and is less receptive to the marginalized then it was just 10 or 20 years ago. A synopsis of the paper can be found here and the actual paper here.

Thursday, November 12, 2009

Local Media and democracy

There is an interesting article by George Monbiot regarding the demise of local newspapers in the UK and the impact on democracy in that country. Monbiot is an author who polarises views (like our own Arundhati Roy), but I find this particular article quite interesting for the emphasis Monbiot places on the need for independent local newspapers for a vibrant democracy. Monbiot laments on the selling out of local newspapers to vested interests and thinks it may not be a bad idea for biased newspapers to die.

The story appears to have parallels in India. Increasingly, many regional media (both print and electronic) are being bought out or started by politicians or powerful business interests. At least this is the case in South India- I am not adequately aware of the situation in other parts of the country. I am also only talking about state level media and not local media (at district or taluk levels). Given the size of our states, even state level media do not pay enough attention to local issues and there is generally a huge problem with obtaining and communicating information at local levels. This has a significant impact on how our democracy works. Given the diversity in our states, issues relevant for one constituency or district may not be the same as the next. However, because state and national media do not focus on specific local issues, I believe these local issues are lost in the debate. This inevitably leads to the lack of a robust local debate and has an impact on how democracy functions. The need for an independent local media, I believe, is an important cog in deepening accountability and democratic activities at local levels and if they do not exist or are biased, democracy will be poorer. It will be interesting to know and understand more about local media in India and whether they suffer from the ills that the UK local media suffer.

Wednesday, November 11, 2009

The Dinakaran issue

Here is a good summary of the debate on the CNBC-TV18 India Tonight programme on the Justice Dinakaran issue, moderated by Karan Thapar last week.

In this only interview he has given so far to any newspaper, Justice Dinakaran defends himself.

The recusal debate

Vivek Reddy's most-admired piece seems to have contributed to a healthy debate on the subject of recusals. Here, I wish to share with readers two interesting responses I received - one from Shamnad Basheer and another from K.V.Dhananjay.

I also found P.P.Rao's article on recusal by Judges (Go to Article and click 'Accusation of bias against Judges')published in Tribune very informative. I welcome readers' feedback to these responses, and to P.P.Rao's article.

Shamnad Basheer:
This logic can be stretched ad absurdum . Why don’t we just have a simple test of “is the interest (whether pecuniary or otherwise) significant enough to influence the judge”? A determination in this regard can be made by a special body constituted for this purpose (comprising of senior judges + senior counsels with no interest in the matter and/or academics (or other reasonably objective stakeholders)). The pecuniary vs non pecuniary distinction is arbitrary to some extent—since a judge who owns a share worth Rs 10 may still have to recuse himself under this standard.


This 'recusal' business is simply going out of hand in India. A judge of the Karnataka High Court, L.Narayanswamy recused himself a few days ago in a case that involved a Bank in which the judge happens to hold some 'account'. If only this were to be taken as a precedent, no judge of the Karnataka High Court could possibly hear any case that involves the BESCOM (the sole State company that distributes electricity in Bangalore and which, of necessity, powers judge's residences and the High Court). Or say, a case involving Toyota Motors Company because Judges of the High Court are daily transported in cars manufactured by Toyota Motors. Better yet, no judge in India (excepting judges of rural courts who must be waiting for their sanctioned computers) could possibly adjudicate on any dispute involving Microsoft Corporation simply because Microsoft happens to manufacture the operating system or one or more applications installed in computers used by or for judges.

A judge should, invariably, recuse himself while adjudicating a dispute involving a company the shares of which are held by that Judge. After all, shares of publicly traded companies have no intrinsic value and a decision may itself become 'market moving information'. Further, the securities laws in India, like it is in other countries, forbids the acquisition, possession or dissemination of 'market moving information' by any person except through sanctioned channels. A judge who generates 'market moving information' through his decision is placed in 'no better privileged position' under the securities laws than say, any insider within that company.

Monday, November 09, 2009

Justice Raveendran's recusal

Recusals at the highest court, particularly in sensitive cases tend to be controversial. In an Op-ed piece in the Indian Express, I examine whether the recent recusals from the Supreme Court are consistent with the standard laid down by the Supreme Court and past practice.

Sunday, November 08, 2009

NLSIU Reservations Case

I have just come across a fascinating case that was recently decided by the Karnataka High Court (judgment here). The petitioner challenged the admission of certain persons under the quota reserved for the Scheduled Caste category in the National Law School of India University, Bangalore. I have only had an occasion to briefly study the judgment, but I believe the primary contention was that Constitution (Scheduled Castes) Order 1950 lists different castes and declares them to be Scheduled Caste with regard to the State of Karnataka. In other words, other Scheduled Castes (i.e., from other States) not included in the list would not be Scheduled Castes for the purposes of the State of Karnataka. The petitioner contended that NLSIU is not a national level institution since it was established by a State law. The respondents contended, inter alia, that NLSIU was a national level institution, and that other such institutions like AIIMS followed a similar procedure (of extending reservations for Scheduled Castes and Tribes across the country). The Court has held against NLSIU: "Even if it is to be held that the State has in fact established [NLSIU] as a national level institute, the reservation for Scheduled Caste and Scheduled Tribe candidates have to be as per the Presidential Order, 1950 as declared in relation to Karnataka State... it has to be held... [NLSIU] could not have extended reservation to the Scheduled Castes and Scheduled Tribes of other States ignoring the Presidential Order..."
I hope to study the judgment and write a little more in due course. I believe that NLSIU has appealed to a DB of the High Court.

UPDATE: There is another recent judgment on exactly the same issue (Articles 341, 342 of the Constitution, notifications thereof, and whether benefits to SC/ST's can only go to those of a particular state) by the Delhi High Court (Justice Ravindra Bhat).

Friday, November 06, 2009

Crisis of impunity

Here is the speech Manoj Mitta delivered in the British Parliament before the All Party Human Rights Group on November 4 at an event commemorating the 25th anniversary of the Sikh massacre of 1984. As regular readers of LAOT would recall, Manoj Mitta, co-authored with H.S.Phoolka, When A Tree Shook Delhi:The 1984 Carnage and its Aftermath (Roli)(reviewed on our blog here). As a few comments to his post reproducing his brief speech on his blog (Legal Airs)indicate, his speech appears to have provoked some because of the hurtful (and yet justified) comparison he makes between the level of impunity under the Raj and now. I'd have appreciated if Manoj also dealt with the reasons for this crisis of impunity, and how to address them, but I understand it would require another forum.

Thursday, November 05, 2009

Civil Society and Democracy

Today's Indian Express has a thought provoking editorial on the role of "civil society" in a democracy. There is also an interesting opinion by Dheeraj Nayyar on the same issue. The provocation for both pieces is a letter written by various "eminent" people asking for the appointment of Kiran Bedi as the Chief Information Commissioner. If Kiran Bedi is not appointed, the letter, apparently, goes on to request the government to explain how somebody else was found suitable. I must admit that I find the request asking the government to explain the "better" suitability of somebody else quite strange. Can, and does, the government do that for any post where there are unlimited contenders? At best, it can probably explain why a particular person is found suitable. The principal point in the Indian Express pieces and various others on the subject is whether so-called civil society should aim to become an alternate power centre or just a forum demanding accountability? I think it should stick to being a forum demanding accountability rather than trying to force the government to make certain decisions. It is important for civil society groups not to convert their frustration with government processes into steps that appear as power hungry or undemocratic! If they do, they are undermining the very processes they are seeking to strengthen. So, while the demand to appoint Kiran Bedi is probably fair, the request for a justification of her unsuitability in case somebody else is appointed is, I believe, not a welcome request.

Gender Justice

The latest issue of the EPW includes four articles on gender justice that may be of interest to readers:

1. Flavia Agnes on property, conjugality and maintenance;

2. Indira Jaisingh on the Domestic Violence Act;

3. Kalpana Kannabiran on litigating sex discrimination in India;

4. Sagari Ramdas on gender justice and the Forest Dwellers Act.

Wednesday, November 04, 2009

Access to healthcare: Draft National Health Bill

Two recent pieces on access to healthcare may interest our readers:
(i) this Outlook story shows how the meager healthcare resources at AIIMS that are currently accessible by the poor may not continue to be so if recent policy recommendations are accepted. Not that it would make too much of a difference in a system where almost all quality healthcare is private and prohibitively expensive for a good section of the population.
(ii) Krishnamoorthy's opinion in the Hindu examines certain policy options for providing meaningful universal access to healthcare.

A January 2009 version of the Draft National Health Bill is available here. I have not given it more than a cursory glance, but the Bill appears to incorporate 'progressive realisation' and 'minimum core' standards well-established in international and comparative (esp South African) law. Colin Gonzalves takes a critical look at the Bill here.

Barring one exception, this blog has not discussed this very important issue of right to health in any detail. I hope that this post will encourage our readers to analyse and comment upon the draft Bill.

: This opinion piece in today's Hindu on the medical policy and absence of doctors in rural areas may also be interesting.

Tuesday, November 03, 2009

Unravelling the PF scam

The Provident Fund scam in the Ghaziabad District Court, which came to light in January 2008, may be a tip of the iceberg. The huge ramifications of the scandal probably explain why we are nowhere close to punishing the guilty, even as it completes two years under the Supreme Court's exclusive supervision. In this article, I seek to unravel the factual matrix of the case, and explain how secrecy mars the investigation of the case. In a separate piece, my colleague, Ajoy Ashirwad Mahaprashasta throws light on the recent mysterious death of the prime accused in the case. Together, we raise the question whether the lives of the remaining accused are safe, considering that the Ghaziabad Police -entrusted with the responsibility of protecting the witnesses - has pleaded helplessness in the absence of information being shared by the CBI, which is investigating the case.

Speech and Other Things

Two thoughts, which (with apologies) raise questions without providing answers:

(1) The attitude of those in power in Russia towards Stalin (see LA Times, Russia Reconsiders), reminded me mildly of the attitude of some in power at home towards Indira Gandhi (see Indian Express, Recalling Indira). Dynastic compulsions, then, may not be the only reason that figures-of-the-past are given the kind of symbolic attention they tend to receive. The question that I hope to raise here is: how much room is there within Indian political parties for debate, dissent and the free exchange of ideas – even ideas critical of the party’s past? (Consider the fate of Jaswant Singh’s Jinnah, and Shashi Tharoor’s holy cow);

(2) While linguistic rights and the freedom of speech are documented and protected in separate provisions of the Indian constitution, I wonder if there are any legal links between language and speech? (The question sounds strange when asked). Recent problems between Slovaks and Hungarians (see Economist, Linguistic Discontents) made me think of our own linguistic chauvinists back home. The question I hoped to raise is: can it be claimed that one's right to speak in a certain language is as much a part of the freedom of speech as is the idea expressed? In other words, can parents claim that they have a speech related right to have their children educated in the language of their choice? [cf. Meyer v. Nebraska - in the US it's a substantive due process right] In other words, can I claim that the vehicle used to convey the idea deserves as much protection as the idea itself? Incidentally, from whatever little I know of languages, each language has its own cultural baggage. Does language choice have any inherent speech related expressive content?

Sunday, November 01, 2009

Socio-Legal Review: Call for submission

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

About the Journal

The Socio-Legal Review (SLR) is a student-edited, peer-reviewed interdisciplinary journal published annually by the Law and Society Committee. 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.

Guidelines for Submission

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