Wednesday, May 26, 2010

Kasab's Sentence II

Whether the sentencing of Kasab to death followed the procedural and substantive guidelines laid down by the Supreme Court in Santosh Bariyar will probably form an important argument in his appeal. In the meantime, readers may form their own opinions by reading the 1588-page judgment of the trial court. Also, readers may be interested in Manoj Mitta's excellent article on death penalty law in India.

Tuesday, May 25, 2010

PIL Guidelines case update

The ongoing case of State of Uttaranchal v. Balwant Singh Chaufal came up for hearing before the Supreme Court Bench of Justice Dalveer Bhandari and Justice Gyan Sudha Misra on May 3. The Court's judgment on 18th January 2010 in this case laying down certain guidelines provoked an interesting discussion on our blog earlier. The Court had then issued notices to all High Courts to frame rules and notify them. While some High Courts have responded, others have got a fresh opportunity to do so, before the next hearing scheduled on July 19. The May 3 order is available here.

Thursday, May 20, 2010

NCLT Constitutionality Case: Preliminary Thoughts

The Supreme Court’s decision dated May 11, 2010 in the case of Union of India v. R. Gandhi [MANU/SC/0378/2010] is striking for at least two reasons.

In this case, the court considered the constitutional validity of the Companies (Second Amendment) Act, 2002. In its unanimous opinion authored by Justice Raveendran, the court held that the Act which created the National Company Law Tribunal and National Company Law Appellate Tribunal has unconstitutional “defects”, which are capable of being “cured” by suitable amendment (presumably a reference to the doctrine of eclipse). However, the decision is striking for at least two reasons:

First, in emphasizing the importance of the composition of the members of the tribunal, viz. the manner of their appointment, and their qualifications, this decision continues the court’s repeated emphasis on procedural due process: i.e. not on the substance of a decision, but on the manner in which a decision is reached. The decision is founded on the philosophy that creating the appropriate procedural machinery creates the appropriate setting for substantive decisions. In its emphasis on fair process, i.e. on the institutional makeup of the tribunal, this decision emphasizes procedural due process. In this sense, this decision merely continues the traditions of “fair, just and reasonable” process, emphasized most prominently since (although the emphasis did not begin with) Maneka Gandhi’s case in 1978. The court in R Gandhi's case articulated a “right to adjudication by an independent forum”.

Second, the court emphatically held in this case that the basic structure theory could not be applied against ordinary legislation. It was argued that principles such as rule of law, separation of powers, and independence of the judiciary were violated by the Amending Act, and that the law was therefore unconstitutional. The court rejected this argument. However, it found that principles such as rule of law, separation of powers and independence of the judiciary could nonetheless be applied against legislation, since they could as easily be sourced through provisions of the constitution, notably the “essence of equality”. This case highlights very well the expansion of "equality", a trend which began in the late 1970s. However, since the case of S.R. Bommai, this is perhaps one of the most prominent decisions where the basic structure theory has been used in an analysis not concerning constitutional amendments, although the court refuses to term its analysis as such.

From the latest Frontline....

*Justice or revenge? Bikramjeet Batra's article on Kasab's sentence and the implications.

*Moment of Truth: My article on the Supreme Court's judgment banning forced Narco tests. Rajeev Dhavan in his Mail Today article offers a different perspective on this, saying the Supreme Court ought not to have allowed testing, even if the accused/suspect voluntarily agrees to it. He is correct - the lines between voluntariness and compulsion are often blurred.

*The Khushboo case: My article on why the defendants in the Khushboo case did not really lose, having succeeded in dragging her to the Court, and silencing her from speaking on the taboo subject again.

*My review article on whether there is an underlying pattern to the rise, sustenance and demise of sub-national movements.

Wednesday, May 19, 2010

Prevention of Torture Bill 2010: Designed to Fail

This blog has, in an earlier post, discussed the draft Prevention of Torture Bill 2008 [See the Asian Centre for Human Rights Report on this draft Bill]. In the last session of Parliament, the government has finally introduced the Prevention of Torture Bill 2010 in Lok Sabha. Although the Bill has invited some optimistic comments, I have argued in this opinion piece in The Hindu that the Bill is an example of cynical law making at its worst. An analysis of its provisions suggests that it is highly unlikely there will be a successful prosecution under it. Routine conviction of torturers can most certainly be ruled out. As I have argued in the article, the sole motivation of the Bill appears to be to polish India's international image and get over the embarrassment that its non-ratification of the UN Convention Against Torture and Other Cruel, Inhuman And Degrading Treatment and Punishment causes. Indeed, enabling the ratification of the Convention is the primary reason mentioned in the official 'Statement of Objects and Reasons' appended to the Bill: there is not even an acknowledgment of the scale of the problem of torture in India. Parliament will do well to reject the proposal which does worse than pay lip-service to an important human rights concern.

Update: A reader has just alerted me that the Prevention of Torture Bill 2010 was indeed passed by Lok Sabha after a brief, late-evening debate in which not a single member of the main opposition parties (BJP, RJD, BSP, CPI, NC, Shiv Sena) said anything. Noteworthy are Shashi Tharoor's introductory and concluding remarks in his speech:

I have often felt that the issues here go to two fundamental problems in our country. The first is, how we treat our own people; and the second is the image of our country in the world at large.
... ...
... ...
Indeed, the next time if somebody wants to make an Oscar-winning movie showing an Indian policeman behaving in that way [i.e. torturing a citizen, as in SlumDog Millionnnaire], we can surely hope that they will also show him being punished and sentenced for his actions. That is indeed what India should stand for and be seen as standing for around the world.

The Bill, sadly, caters only to one of these two objectives. It remains for Rajya Sabha to emphasise the importance of the other.

Monday, May 17, 2010

Bar Exams, Reinventing the Wheel

While researching at the British Library this week, I stumbled across a Memorandum on the administration of justice in India by Sir Patrick Spens, Chief Justice of the Federal Court of India.

Spens noted,

I would now make some remarks in regard to the Bar. At every place that I visited, without exception there are far too many barristers and advocates for the work which is available. Everywhere there are literally hundreds with nothing to do except to sit in court and listen and no work to occupy them when they are not doing this. Some years so this failure to get work and young men becomes victims of disappointment, ill will and disaffection (perhaps a reference to the number of lawyers in the nationalist fray) . The fault, I think, is that it is far too easy to become an enrolled advocate at most of the High Courts. As a rule a course at the university with the degree of LL.B and a few months apprenticeship to a local advocate is all that is required for admission to the local Bar. It seems to me that the universities which depend largely upon the number of pupils who come to them are likely to be in favor of the continuation of a situation where the university degree carries such potential subsequent advantages. Moreover for the purpose of maintaining or increasing the supply of pupils there is temptation to a university to make it easier from time to time the conditions of the qualifying examination for law degree.

In the interests of the Bar itself, I believe, that it might well be desirable either that an agreement should be secured between the universities concerned for a more or less uniform and considerably stiffer examination at all universities for the degree of LL.B, if such degree is to remain the basis of admission as Advocates, or that , as on the original side of the High Court, a further and stiffer qualifying examination is required of a young man before he comes to a bar.

The Memorandum was given serious consideration by the Viceroy and forwarded to London. Comments were invited by colonial bureaucrats and judges, but this particular recommendation came to naught, with the comment.

It is doubtful whether a stiffening of the examinations will lead to any real improvement. There is , as matters now are, more capacity in this country for passing examinations than for practical work, and any raising of the standard of examination though it might have some small effect, could not be expected to achieve very much.

Saturday, May 15, 2010

The Rape Law Amendment Bill

In an earlier post, I had mentioned that the Ministry of Home Affairs has posted a draft of the Criminal Law (Amendment) Bill, 2010 for suggestions from the public. A group of us at NLS came together to discuss the Bill and to submit our comments to the Ministry. Our response can be found here. I am posting it in the hope that we can use this forum to engage in a more broad-ranging discussion on the issue of sexual violence and the law.

Legitimate Expectations

Shamnad's last post briefly mentioned 'legitimate expectations', an important area of administrative law that does tends not to get much attention in Indian academic writing.

I think the ruling precedent in this regard is still Punjab Communications Ltd vs Union Of India (1999), where the Supreme Court held that:

477. the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way.

The Court cited British precedents (especially Hargreaves) to suggest that whether a legitimate expectation can be legally frustrated on public interest grounds can only be judged by the very deferential standards of wednesbury unreasonableness, and nor the more demanding proportionality test:

The result is that change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. ... It is, therefore, clear that the choice of the policy is for the decision-maker and not for the Court, The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made.

The law in Britain has moved on since Hargreaves. Recent cases such as Coughlan and Nadarajah seem to suggest that proportionality is indeed the correct standard of review in legitimate expectations cases, although doubts about the principled foundations of the doctrine continue. I am not very familiar with the developments in Indian law on legitimate expectations since Punjab Communications. Can any reader throw further light on the issue?

Thursday, May 13, 2010

Request for Deferring Bar Exam and Mulling on Sudeer

I reported earlier on the prospect of an Indian bar exam in the aftermath of a Supreme Court direction in Bar Council of India vs Bonnie FOI Law College.

Kian Ganz, the dynamic founder of Legally India ran a piece a few hours back on a letter that we sent to Gopal Subramanium (Chairman of the Bar Council of India) requesting for a deferral of the proposed bar exam:

"The new bar exam for law graduates is understood to be held in late August with the Bar Council of India (BCI) set to announce the syllabus in a matter of days. Meanwhile, NUJS Kolkata final year students have petitioned BCI chairman and solicitor general Gopal Subramaniam to postpone the exam until 2011 because they argue it prejudices students and is unconstitutional without amending the Advocates Act 1961."

I reproduce the letter that we sent the BCI Chairman below. I am particularly interested in readers' views on whether or not the BCI (Bar Council of India) can introduce a bar exam without an amendment to the Advocates Act.

Dear Mr Subramanium:

My heartiest congratulations on your recent election as the Chairman of the Bar Council of India (BCI). It is rather fortuitous that you were elected to this important post soon after your had articulated your vision for an all India bar exam before the Supreme Court in Bar Council of India vs Bonnie FOI Law College.

As you are aware, during the consultative process undertaken by you in the context of Bar Council of India vs Bonnie FOI Law College, I had submitted a paper to you advocating strongly for a bar exam. I attach this again for your reference.

Needless to state, a number of us applaud your initiative and do hope that it will go a long way towards improving the quality of lawyers in India. However, we are concerned about the prospect of holding such exam at such shot notice i.e. a mere two months from now.

May we please request you to defer the proposed bar exam to next year, such that it only applies prospectively to candidates that graduate (with LLB degrees) next year?

First, as you will appreciate, effective notice of the exams came to our students (I speak of the National University of Juridical Sciences (NUJS), Kolkata where I teach) only last week. Although the exam was mandated by the Supreme Court judgment (Bar Council of India vs Bonnie FOI Law College) in December 2009, this order was not made public and is, to this day, not available on the Supreme Court website. I had posted a copy of this order on “Law and Other Things”, a blog, on 5th April 2010.

Subsequent to this blog posting, some newspapers had interviewed you and reported on the prospects of a bar exam. However, even at this stage, most students did not think that it was logistically possible to hold the exams this year. And many of them did not think that such exams could be held without a legislative amendment (in the light of the Supreme Court ruling in V Sudeer, an aspect I will dwell upon later in this letter).

It was only pursuant to my telephonic conversation with you on the 8th of May, that I understood that you were planning on conducting the exams in July-August this year. On the very same day, I announced this to our students at NUJS, who were extremely concerned at this short notice (a mere 2 months) and have requested me to forward their representation to you, which I attach with this letter.

As you will appreciate, a bar exam has never been held in this country since the 1970’s and students had a legitimate expectation that there would be no exam this year. With only a few weeks left for most students to graduate, it will inconvenience them to a very high degree. Many of them have signed contracts with law firms and lawyers and are scheduled to begin working in the months of June-July. Lawyers and law firms may have hired them on the expectation that they are ready to go on day one and not handicapped from appearing in court or practicing law, owing to a bar exam, that has been suddenly instituted after 35 years. Many other students are going abroad for jobs and higher degrees (LLM’s) and will be placed at a great disadvantage owing to this sudden announcement.

Secondly, this exam may prove logistically difficult for your team to execute at this late stage. You are of course the best judge of this, but if I may please be permitted to recount our own experience with such exams: it takes the national law schools a good 10 months’ time to plan and execute the CLAT entrance exam each year–which as you know has approximately around 15,000 candidates each year and only 11 law schools within its fold. More importantly, it already has a history (although CLAT is 3 years old, individual law schools conducted their own exams for several years prior to CLAT), whereas the bar exam that you envisage will be held for the first time in 35 years. Importantly, this exam will require immense planning and co-ordination as it is likely to have at least 45,000 candidates, if one assumes that the 900 odd law schools in the country might generate at least 50 candidates on an average this year.

Thirdly, and perhaps most importantly, the V Sudeer case (V. Sudeer v. Bar Council of India, AIR 1999 SC 1167) does not appear to permit a bar exam by the BCI (Bar Council of India) without an amendment to the Advocates Act. In Sudeer, the court categorically held that any additional eligibility criteria for the practice of law over and above what was mentioned in Section 24 of the Advocates Act was unconstitutional. Particularly if such additional criteria amounted to either a bar exam or a training of some sort, since the power to mandate such exams/training was expressly taken away via an amendment in 1974 to the Advocates Act. As you are no doubt aware, in the light of the 1974 amendment, once a student legitimately cleared his or her exams at a recognized University, he/she was entitled to enroll in a state bar council and practice before any court of law, without having to undergo training or take an exam of any sort.

Therefore, if such an exam needs to be conducted by the BCI, it can be done only through a legislative amendment. The court in Sudeer stressed that an enrolment comes with an automatic right to practice—subject to conditions of practice framed by BCI, High courts and the Supreme Court.

Therefore, the BCI cannot, in my personal view, attempt to pass off a bar exam as a “condition of practice”, since such an exam would effectively emasculate the concept of enrolment i.e. enrolment is meaningless without the right to practice. In short, the court is likely to see this cleverly crafted condition of practice as nothing more than a camouflaged “pre-enrolment” condition, a condition that the BCI has no authority to impose under the present statutory scheme.

As you are aware, the court in Lawyers Collective vs Ashurst defined the term “practice” to widely include not just the right to appear before courts, but to also include all kinds of non-litigious practice as well (transactional work and legal advise etc). Therefore divesting enrolled lawyers of the right to practice upon enrolment will have serious consequences for all law graduates this year. Rather than expending resources into the conduct of a bar exam this year and risking the wastage of resources in the event that the court strikes down the bar exam as outside of the BCI’s current competence and therefore unconstitutional, we strongly urge you to push for an amendment to the Advocates Act and conduct the exam next year.

Given all the above circumstances, I hope you will kindly consider deferring this exam to next year, such that it applies prospectively to only those law graduates that pass out next academic year. To conclude, let me please reiterate that we are very much in support of your wonderful initiative for an all India bar exam and are ready to help in whatever way you deem fit to make this a success. We however feel that rushing it through within the next 2-3 months may result in a sub-standard and badly executed exam and prove counterproductive to your vision for regulating the profession in a more optimal manner.

Warm wishes,

Shamnad Basheer

Friday, May 07, 2010

On Kasab's sentence

One of our regular readers, Vinod George Joseph, has written a persuasive piece on his blog on why Kasab should be kept alive. I agree with him fully.

I have not read the trial court's judgment yet. But from the newspaper reports, the reasons for the award of death sentence to Kasab are hardly convincing. To cite a few:

1. Keeping him alive will invite Kandahar-type incidents: Apart from the fact that it is speculative and hypothetical, and death penalty cannot be awarded for such reasons, it also exposes our own vulnerabilities and lack of confidence that we could ensure fool-proof security to those who travel by air.

2. Kasab can't be reformed: Absolutely true. That is why Supreme Court has repeatedly said for such offenders life sentence must mean life sentence, and he need not be released till he dies of natural causes. The question of reform of a convict is relevant only if he is likely to be released at some point of time in future.

3. Kasab did not show any remorse:: The question of remorse is a subjective feeling, and can be considered only when he seeks pardon or commutation of his sentence. If he suffers a life sentence, the question of considering his remorse or lack of remorse does not arise.

4. It will be a deterrent: This cliche has no meaning as far as Kasab is concerned. Criminals like Kasab are not afraid of death, and therefore, is unlikely to deter future Kasabs. On the contrary, killing him will invite future Kasabs seek retribution, which will mean putting ourselves to risk all over again.

The public celebration of the sentence in Mumbai, and the public display of glee by the Public Prosecutor over the sentence reveal what would have been the response had the Judge given Kasab life sentence rather than Death penalty.

Thursday, May 06, 2010

From the latest Frontline....

An update on the Supreme Court's judgment in the Jessica Lal case: The media missed the Supreme Court's indictment of High Court, even while upholding High Court's verdict. Supreme Court disagreed with High Court's strictures against Justice S.L.Bhayana, who as the trial judge had acquitted all the accused in the case. In fact, he was elevated to the High Court immediately after the acquittal judgment. Is the Supreme Court indirectly justifying its decision to appoint him to the High Court?

In Copyright Concerns, I am saying that the proposed amendment to the Copyright Act, 1957, suffers from a lack of empathy with the differently abled.

In this review article, I am reflecting on how changes in our theoretical approaches can bring about social and political changes. Books reviewed are Rajeev Bhargava's What is Political Theory and Why do we need it? and Decolonisation of Legal knowledge edited by Amita Dhanda and Archana Parashar.

More on Narco-analysis judgment

What to make of Sevli v. State of Karnataka, and the tension between investigative imperatives and a suspect's right against self-incrimination? In this opinion piece in today's The Indian Express, I argue that hopefully, the judgment will be read narrowly. In an earlier blog post, Taunabh has already laid out the case details. One fascinating aspect, which my piece does not explore, is the thin dividing line between a medical test (DNA samples, for instance), where consent is not required, and a "testimony", where it is. The court terms brain-mapping as a testimony, but is it really?

Wednesday, May 05, 2010

Narco-Analysis Judgment: Selvi v Karnataka

The full text of the landmark judgment of the Supreme Court in the case of Selvi v State of Karnataka is available here. I have not read the judgment yet, but media reports suggest that the Court has held that involuntary subjection of a person to narco-analysis, polygraph test and brain-mapping violates Article 20(3) of the Constitution, which provides that 'No person accused of any offence shall be compelled to be a witness against himself.' (the 'right to silence'). The Court has, apparently, also held that even when a person volunteers to be subject to these tests, their result cannot be admitted as evidence in a court of law.

Saturday, May 01, 2010

Privacy and UID

This blog has discussed the implications of the UID project before. Readers interested in the issue may want to see the following resources too:
- Expert Committee on Metadata
- Usha Ramanathan's articles in the IE: (i) Personal is Personal See also, the comment on data keeping in Nazi Germany), and (ii) Eyeing IDs
- Rahul Matthan on the need for a law protecting privacy
- Perry4law, a 'techno-legal law firm', on some of the implications of the project