Monday, January 31, 2011

Understanding our SC: Composition & Other Things

In a recent post on this blog, Abhinav Chandrachud discussed his recent study of the Supreme Court's composition (1985-2010) (published in the Economic & Political Weekly). In an article in the current issue of the Economic & Political Weekly (available here), Sudhir Krishnaswamy and I reflect upon Chandrachud's piece, how the data collected can be useful, and the ways in which one can develop an institutional sociology or realist analysis of Supreme Court decision-making.

Neoliberalism etc.

Frontline's latest issue on the price-rise makes a substantial contribution to the field reports on neoliberalism across the country. Neoliberalism, as an academic subject, has attracted considerable literature in recent past. It may be of interest to readers, who wish to understand the subject, to consider India's experience in this regard.

My contributions to this issue include two pieces, one on the Income Tax Appellate Tribunal's order on why Bofors' then representative in India is liable to pay income tax on the commissions received by him, and the other on redefining torture, a comparison of the Rajya Sabha report and PLBS report on the anti-torture Bill, approved by Lok Sabha.

Thursday, January 27, 2011

Public Appointments: Nolan Principles

Those following the debate on the appointment of PJ Thomas as the Chief Vigilance Commissioner may be interested in the Nolan Committee Report on Standards in Public Life, submitted to the British Government in 1995. The Report has come to have much currency in British public life, and is relied upon by agencies such as the Commissioner of Public Appointments. The Report set out “The Seven Principles of Public Life”, often described as “the Nolan Principles”, which are:
1. Selflessness – Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other benefits for themselves, their family or their friends.
2. Integrity – Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.
3. Objectivity – In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
4. Accountability – Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
5. Openness – Holders of public office should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
6. Honesty – Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
7. Leadership - Holders of public office should promote and support these principles by leadership and example.

Tuesday, January 25, 2011

Consultation on Sedition Laws

A consultation organised by the Centre for the Study of Social Exclusion (CSSE), National Law School of India University (NLSIU) and the Alternative Law Forum (ALF), Bangalore

In the wake of the conviction of Dr. Binayak Sen under Section 124A of the IPC and charges of sedition filed against Arundhati Roy, Varavara Rao and S.A.R. Geelani, the debate on the relevance of the law on sedition has found a new and urgent voice. The particular injustice of convicting a person who has merely exercised his constitutional right to freedom of expression has focussed the nation's attention on the colonial legacy of the sedition offence.

Section 124A was introduced by the British in 1870 and amended in 1898. It was one of the many draconian laws that were enacted to stifle any voices of dissent at that time. Gandhiji was prescient in recognising the fundamental threat it provided to democracy when he called it the 'prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.' What the law does is to criminalises those who “bring into hatred or contempt, or excite or attempt to excite disaffection” towards the state. The law, however, carves out an exception for disapprobation or criticism of the government that does not lead to exciting hatred, contempt, or disaffection. Some of the most prominent persons charged with sedition under this law include Bal Gangadhar Tilak and Mohandas Gandhi. The Supreme Court of India in the Kedar Nath case has upheld the constitutional validity of the law, but clearly distinguished between disloyalty to the Government and commenting upon the measures of the government without inciting public disorder by acts of violence. The judges also observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality. However, in practice, the sedition law continues to be used against dissenting voices including journalists, writers, intellectuals, and human rights activists across the country.

The time seems apposite to have a discussion on this outdated offence and move in a concrete sense towards repealing or amending the law. By so doing we would be ridding Indian democracy of a provision that has no place in a country that prides itself on a Constitution that guarantees to all its citizens the fundamental right to dissent.

The objective of the Consultation is to discuss
• The experience with the sedition law in India and how it is being used to target journalists, intellectuals, writers, human rights activists and critics of the government
• Analyse the sedition offence within the framework of the Constitution
• Engage with comparative jurisdictional experiences on sedition and law reform
• Examine the sedition law within the frame of international law

Based upon these viewpoints, the consultation will aim to make out a case for either the repeal or the amendment of the law through a policy paper which can serve as the basis for a law reform effort by concerned parliamentarians or members of civil society.

Date: January 29th, 2011 (Saturday)

Venue and Address: Training Centre, National Law School of India University, Nagarbhavi, Bangalore 560072


9.30 a.m.- Registration

10.00 a.m.: Introductory Remarks: Dr. S. Japhet (Coordinator, Centre for the Study of Social Exclusion, National Law School of India University, Bangalore)

Session I: 10:15 a.m. to 11.30: The Historical Context of the Offence of Sedition

Chair: Professor Hasan Mansoor, People’s Union for Civil Liberties, Karnataka

Speaker: Ujjwal Kumar Singh (Professor, Department of Political Science, Hindu College, University of Delhi. Prof Singh is also the author of two highly acclaimed books “Political Prisoners in India” and “The State, Democracy and Anti-Terror Laws in India”)

Title: Rajdroha in Colonial and Postcolonial Times

Speaker: Siddharth Narrain (Legal Researcher, Alternative Law Forum, Bangalore)

Title: Disaffection and the Law: A History of Sedition Laws in India

Session II: 11-45 – 1.30 "Will the Law of Sedition be the Death of Free Speech?"

Chair: Chair: Arvind Narrain, Alternative Law Forum

Speaker: Jawahar Raja (Advocate, Delhi)

Title: Criminalising Speech: Suspect Communities and Excepted Persons

Speaker: Jagadeesha B.N. (Advocate, Bangalore)

Title: Dissent and the Laws of Sedition: The Karnataka Experience

1.30- 2:30 pm - Lunch

Session III : 2:30 pm- 3:30 p.m.- Comparative Jurisdictions: The Status of Sedition in Other Countries

Chair: Siddharth Narrain, Alternative Law Forum

Speakers: Kalyani Ramnath and Akila R.S. (Visiting Faculty, National Law School of India University, Bangalore)

Title: Sedition Laws: Global Trends, International Experiences

Final Session

3.30- 5.30 - The Way Forward

Thursday, January 20, 2011

Tributes: For and by KG Kannabiran

The Hindu recently carried a tribute to KG Kannabiran by Menaka Guruswamy which draws on her personal encounters with the activist lawyer. In her tribute, Guruswamy refers to the passing of K. Balagopal and the work that Mr. Kannabiran and Mr. Balagopal did together in many fora, including the PUCL. When K. Balagopal passed away, Mr. Kannabiran wrote a moving obituary (published in the EPW in November 2009) that also documented many significant milestones in the history of the human rights movement in India. Re-reading Mr. Kannibiran's tribute, strikingly titled "A One in a Century Rights Activist," one finds many examples of how these two activists joined forces to combat the forces that they felt were vehicles of injustice.

Tuesday, January 18, 2011

Social Rights in India

It is widely believed that the Indian Supreme Court adjudicates social rights. The familiar narrative, about the rise of the Court during the post-Emergency years and the innovations of the PIL era, requires no elaboration. In a new article, available here, and forthcoming in the International Journal of Constitutional Law (I-CON), I challenge this narrative and present a detailed study of the social rights jurisprudence of the Indian Supreme Court. Before embarking upon my own thesis, I show why the literature on social rights in India is deeply flawed and has presented an inaccurate account of our jurisprudence. I then introduce a new distinction in the social rights debate between what I call systemic social rights and conditional social rights. This thesis goes against the literature on social rights in India, and suggests that the paradigm that constitutional lawyers currently adopt to study the South African experience with such rights (weak v. strong form review) cannot adequately grasp the Indian experience. The conditional rights approach is, I argue, a new form of social rights adjudication, and is a rare private law model of public law adjudication. I also discuss in detail what implications follow from the conditional social rights thesis.

The abstract is as follows:

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This Article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This Article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter.

I would be extremely grateful for comments.

Sunday, January 16, 2011

OBITUARY: Former Chief Justice of India, A.N.Ray [Guest post by K.N.Bhat, Senior Advocate, Supreme Court]

A.N.Ray CJI – an unwitting visionary?

Justice Ajit Nath Ray, who retired as Chief Justice of India on 28.1.1977, died on December 25, 2010 at the ripe age of 99. On the date of his retirement when memories of his tenure as CJI were fresh, he was not a popular man; the Bar decided not to offer him a customary cup of farewell tea. Why recall him after 34 years of his uneventful retired life? I, having been part of those tumultuous days, feel that the little that is recorded of those days do a lot of injustice to truth. At any rate one honest version should be recorded for posterity’s sake - may be as an invitation for another honest contradiction.

Justice Ray was a stickler to convention and etiquette and a no nonsense judge. He was no respecter of faces. Needless to say that he was scrupulously honest and hence universally respected. He did not hesitate to record his dissent even when he was a loner as he did in the Bank Nationalisation Case (1970) and in the Privy Purse Abolition Case (1971) – both – 11 judge Benches - and in the historic Kesavananda Bharati case he was one of the six dissenters.

To the surprise of all, in April, 1973 Justice Ray, the consistent dissenter, in favour of the Government, was appointed Chief Justice of India superseding three Judges senior to him. Protests from the Bar were spontaneous and overwhelming. Though seniority as a criterion for appointing a CJ was not part of the Constitution nor of any law, it was a convention followed since 1950 – a sort of home made device to minimize executive interference. Whether that contraption with a conveyor-belt morality of ensuring the first to be placed reaches the destination first – is good for the judiciary has for long been a controversial question. Perhaps, with a more satisfactory machinery of selection in place ‘seniority’ should be dispensed with in favour of suitability as it is in the rest of the civilized world.

However, no one accused Ray J of scheming. And no one ever doubted that if he were to decline the offer many down the line would have grabbed the chance – the Government’s move to supersede would not have been frustrated.

Mr.B.Sen, the senior most among the living Senior Advocates of India in his recently published memoirs recalls, “Chief Justice A.N. Ray was an able and upright judge, quick in decision making and an able administrator. During his tenure as Chief Justice, a good deal of prevailing malpractices concerning listing of cases were sought to be removed. As a man, he was humble, scrupulously honest, deeply religious and a loyal friend. He was somewhat reserved and he made no effort to placate the vocal members of the Bar who were critical of him.” Such of us who were eye witnesses to that era endorse Sen.’s views fully.

With that great Jurist Judge K.K.Mathew as his constant companion, Ray CJ was a party to many landmark judgments. Sample excerpts from a few of his judgments – as a puisne judge and as CJI - may help shed light on his judicial personality.

Bennett Coleman & Co. v. Union of India & Ors. (1973) 2 SCR 757, 759
“It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.”

K. Ramadas Shenoy v. The Chief Officers, Town Municipal, Council, Udipi & Ors. – (1975) 1 SCR 680
“It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by municipalities in such cases.

The Courts enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction.”

In this statement of law lies the genesis of PILs of the future.

Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Anr. (1975) 2 SCR 674
“The Government is a government of laws and not of men. It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods. This privilege arises because it is the Government which is trading with the pubic and the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. Hohfeld treats privileges as a form of liberty as opposed to a duty. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with any one but if it does so, it must do as fairly without discrimination and without unfair procedure. Reputation is a part of person’s character and personality. Blacklisting tarnishes one’s reputation.”

His judgments during the emergency also highlight the importance of the principles of natural justice.

Unfortunately however he is remembered for the judgment in ADM, Jabalpur v. Shukla,(1976) a case in which the crucial issue was whether the source of right of a person to life and personal liberty was Art.21 of the Constitution and if so when that Article stood suspended during an emergency, whether a person’s life or liberty was solely at the mercy of the executive?.

Appeals against anti-emergency Judgments by over a dozen High Courts were about to be heard by a five-member Bench consisting of A.N. Ray, CJ, M.H. Beg and three other junior judges. The Bench was obviously hand picked. Late Nani Palkhivala reportedly refused to appear for the citizen before this Bench – he felt that it would be a futile exercise. Fali Nariman in his memoirs recounts how late C.K. Daphtary, a doyen of the Bar persuaded Chief Justice Ray to reconstitute the Bench on some acceptable basis like seniority. The implication was that in the Bench of senior most five, Khanna Chandrachud and Bhagwati JJ would also be included - the expectation of Daphthary, Palkhivala and others being that the trio would decide against the government. “Show me the judge and I’ll tell the law” was as valid a saying then as it is believed to be now.

If the original formation of the Bench was for securing a verdict for the emergency regime, why did the CJ agree to radically change the composition? Was it because in reality he was indifferent to the out come (– hard to concede -) or was he confident that the substitutes were also ‘safe’ fielders? As it turned out to be, Khanna, J. was the sole dissenter for the citizen.

Constant ostracism coupled with stage managed inducers like fake attempt on his life, made Ray CJ to feel hounded and paranoid. He was lead to believe that outside the government, he had no friends. Obviously at the beckoning of the government he embarked upon a mission impossible to over turn the ‘basic structure’ theory established by the 7:6 majority in Keshavananda case; that verdict would be an impediment to the grandiose mutilations made and proposed to the Constitution. He was accused of allowing the executive to transfer ‘inconvenient’ judges. At a time when all freedoms were in limbo, even rumors could add up to make Ray CJ the judicial face of the hated emergency - unworthy of a farewell tea.

A brief recounting of the important events and developments after the declaration of emergency on 25th June, 1975 would be useful.

The electoral laws were amended drastically with retrospective effect to nullify the disqualification of Mrs. Indira Gandhi. In addition, in August, 1985, the Constitution (39th Amendment) Act was passed under which a new Art.329A was added. According to this Article, election to either House of Parliament of a person who holds the office of Prime Minister at the time of such election shall be called in question except before “an authority”. Any pending Election Petition would abate. On November 7’ 1975 the Supreme Court set aside the judgment of the Allahabad High Court disqualifying Mrs.Gandhi. On 1st September, 1976, the Constitution (42nd Amendment) Bill was introduced with the provisions, inter alia, to amend Article 368 dealing with the power of the Parliament to amend the Constitution. The amended provision would remove all restrictions on the parliament’s power of amendment effect Kesavananda Bharti’s basic structure principle would be no longer good law. A new chapter for the constitution of new Tribunals, though innocent-looking were sinister in design; they were to render the existing judicial system completely ineffective. The concept of All India Judicial Service introduced by that amendment was to have the Judiciary entirely under the control of the Executive as was the case in respect of other All India Services. The amending Bill was passed and it became a law.

This was the scenario when the year 1976 ended. In January, 1977, the emergency regime became smug enough to announce general elections to the Lok Sabha. The elections were expected to be sham and the programmes of total demolition of a democratic set-up were postponed to an era after elections – all to give a colour of legitimacy. The complacence was generated partly by the ‘jee huzoor’ intelligence wing that had no option but to please the masters and supported by the confidence that the Judiciary also stood subjugated.

What would have happened if the ADM Jabalpur case were to be decided against the Government? Sanjay Gandhi was known to be ruthless and rash. Was there anything anybody could do if the Courts were to be shut down? The answer was No. Perhaps the pliant judiciary unwittingly contributed to the end of the illegitimate regime though none of the judges – not even A.N.Ray CJ - could be accused of ‘stooping to conquer’ by feigning surrender.

On retirement Ray, CJI, dedicated his life to the service of Sri Rama Krishna Mission, with whom he had long association. It is said that in 1980, after Mrs. Indira Gandhi returned to power, A.N. Ray was asked if he would agree to be our Ambassador to the USA or High Commissioner to the U.K. following the precedents of other worthies. Ray CJ declined the offer – to him the office that he last held was the ultimate.

Why remember him now? One of the many answers is, while skeletons start tumbling the day after a Chief Justice retires, Ray CJ had ‘nothing to declare’; the second one is his story is in reality the history of our Supreme Court – of the entire judiciary during the emergency – which is worth recording.

Thursday, January 13, 2011

Court Ordered Compensation and the Poor

The Times of India has this piece today on how an epileptic woman, Fatema, who received 50,000 Rs in June from the Delhi High Court for giving birth under a tree after being denied treatment at a local hospital has still yet to receive a rupee from the judgment. She continues to live outside with her six month old child in what has been a harsh Delhi winter. The Municipal Corporation of Delhi and GNCTD were held jointly liable in Justice Muralidhar's judgment, but the GNCTD dragged its feet in paying the money until Human Rights Law Network - who had brought the original petition - filed a contempt of court petition against them in September, and finally the money was deposited in October. However, Justice Muralidhar's order states that the money, which has been deposited into a bank account, will only be given to the woman after three years, during which time she can collect the quarterly interest, or about 900 Rs a quarter. It cost her about 500 Rs to set up a bank account to receive this amount, which she had to borrow, so the first quarterly payment that she will receive later this month will largely go to cover that expense. This means she can expect her first full 900 Rs payment sometime in April.

It strikes me that this story points to at least two broader problems with the delivery of monetary compensation after it is given by a court. The first is foot dragging by the government. If the lawyers in this case had not followed up there is a great likelihood that Fatema would not have gotten anything at all. The government delayed in giving payment despite the original order being covered prominently in the press and it knowing that she had the support of a large civil society organization backing her up. Indeed, she gave birth in Jangpura, a Delhi neighborhood which is one of the epicenters of human rights lawyers in the country. If the government delayed in this situation it is likely delaying (or not paying at all) in many other similar cases. It is one thing for the government not to implement, or slowly implement, a sweeping court order in a PIL about reforming the medical system, but when it won't even give a small amount of monetary compensation that has been awarded to one person without the threat of being held in contempt this is a serious concern.

The second problem this case illustrates is how such compensation is structured by courts. Justice Muralidhar has many fans in civil society because of several sympathetic and thoughtful orders he has given to poor persons like Fatema (her case might well have been dismissed by another judge). I assume that the money was given in a fixed account she could only collect interest on for the first three years out of a fear that she might otherwise unwisely spend all the money at one time or someone else might learn she has come into this money and try to steal it from her. Although those concerns may indeed be well-founded, it has resulted in a situation where she still can't put a roof over her or her child's head. Further, it is unclear how the amount of 50,000 Rs compensation was decided and whether this represents not only adequate compensation for Fatema, but whether it will also act as an adequate deterrent against the government.

Constitutional torts where individuals bring complaints against the government seeking individual monetary compensation are often put forward as a potential alternative to PIL for more effectively holding the government accountable (for the record, I don't know what the exact complaint case was in this case). In actuality, constitutional torts are still relatively rare, in part because judgments from such cases give such a small amount of money, and also because of the lack of contingency fees in the country to incentivize lawyers. The merits of PIL vs. constitutional torts is for another post, but it seems that there is a lot of work yet to be done in understanding how such compensation should be given and the effect it has on complainant's lives and the government's behavior. For example, should the Court issue preemptive orders that for each month the government delays in depositing the money the claimant will receive another 10,000 Rs? Is 50,000 Rs appropriate in such a case? How much should the compensation differ from Fatema's case than the same case in a village in Madhya Pradesh, where the cost of living is presumably much lower, but the indignity of such an experience is no less. Should the government hold compensation in trust for poor victims? If so, how should payments then be structured to weigh competing concerns about immediately helping the complainant and the ability of the complainant to handle such a large amount of money all at once.

It seems there is still a lot of room for judges, lawyers, and academics to create useful guidelines or principals to follow for cases such as Fatema's.

Wednesday, January 12, 2011

Guest Post: Mr. Kannabiran's contributions to Human Rights

The following guest post has been contributed by Arvind Narrain, of the Alternative Law Forum, Bangalore. It is based on a presentation delivered at a meeting organised by PUCL Bangalore on January 08, 2010 titled 'Celebrating the Life of Kannabiran'.

Clearly Mr. K.G. Kannabiran was, as Sudhir Krishnaswamy put it in an earlier post, 'the doyen of the human rights movement in India'. Along with Mr. Balagopal, he was one of the two greatest sources of inspiration for human rights movements and struggles in India. Though a large majority of Mr. Kannabiran's work was in the local courts in Andhra Pradesh, in terms of his imagination he was truly global and transcended the limits of Andhra. There really is no one who can fill the void left by such an eminent human rights lawyer with a vision and an imagination which traversed horizons beyond lawyerly thinking, fed as it was by literature and philosophy. We will miss his presence marked as it was by a fierce commitment to the cause of the underprivileged as well as his erudition that was able to master subjects as diverse as the philosophy of Albert Camus to the travails of A.K. Gopalan. It is a loss which we feel deeply as there is no one who comes close to Mr. Kannabiran for the manner in which he combined a deep learning with a fierce commitment and extraordinary skills as a lawyer.

I went back and re-read The Wages of Impunity: Power, Justice and Human Rights, (Orient Longman) which is a collection of some of his writings that reflects the range of his work as well as his intellectual concerns over the years. The book provides an insight into law from the perspective of someone who saw the law as it worked itself out at the grassroots level upon the lives of those the Indian state deemed to be dissenters. To those who have not read his work, it is well worth reading and for those who have read it , it bears re- reading. I have quoted extensively from this work, in order to provide a flavour of some of the ideas and work of Mr. Kannabiran. This is an attempt to share some of the insights, inspirations and ideas we have learnt from his lifetime's work.

First, Mr. Kannabiran was a strong defender of the values and ideals rooted in struggle which in his opinion, animated the Indian Constitution. As he saw it,

A constitution framed after a liberation struggle or a struggle for independence is, like poetry, emotion recollected in tranquility. It is a severance from the past, a termination of imposed suzerainty and the setting up of a political sovereignty of one's own people. It rests on a proclamation of legal discontinuity. (pg. 18)

His arguments in court always referenced the Indian Constitution as embodying values and rights which were something that the Indian people gave unto themselves. For someone with such a strong constitutional grounding, the inevitable question he was asked repeatedly was how he came to defend people who might not subscribe to the basic liberal values of the Indian constitution. This was a question which Mr. Kannabiran faced repeatedly both inside court and outside. The thinking was always that some people by their very conduct had forfeited the right to deserve any human rights. This was a form of thinking which was deeply repugnant to Mr. Kannabiran. As he memorably put it:

The one test of belief in principles is to apply it in cases with which you have no sympathy at all. (p 37)

When asked by a judge why he was defending people who had no faith in the Indian Constitution, his memorable response (which I was privileged to witness) was : "Your honour, what is on trial is not their political beliefs but your political beliefs."

While there is a genuine concern that the scope of constitutional struggles was limited by the framework of the Constitution itself, Mr. Kannabiran's work illustrated its radical potential. He felt that any critique of the scope of constitutional work had to be rooted in a context. In his view,

In a perpetually misgoverned society any movement for good governance and governance according to law becomes rebellion. (p11)

Secondly, in Mr. Kannabiran's opinion, rights were to be understood historically. As he put it:

A constitution is a political document which gives legal content to a set of pre existing rights, secured politically by people's struggles. Rights have always never been acquired, never granted. Freedom was acquired by the people from the British and not granted to us by the Indian Independence Act, 1947. (p.41)

When Mr. Kannabiran described rights as a product of struggle, he meant that the way rights worked in India, they were never there for the asking but accrued through constant and ceaseless effort. In his words,

Of significance here is the assumption that rights do not inhere automatically in citizens. A right becomes available only when, through litigation , a certificate is obtained from the court allowing the citizen to speak, write, assemble and move as an assembly and stating that such activity does not disturb public order or the security of the state. (p.8)

This idea - that rights derived their legitimacy or authority from the fact that they were a product of a people's struggle - formed the very foundation of his work and thought. To contest the Supreme Court's decision in ADM Jabalpur, Mr. Kannabiran drew on this understanding to say that the state had no authority to suspend the right to life as the right to life was not granted by the legal document called the Constitution but merely recognised by it. In this understanding of deriving the legitimacy of rights from struggle, Mr. Kannabiran's view was very close to that of Mr. Balagopal.

Thirdly, it must be emphasised that Mr. Kannabiran's lifelong struggle was against what he called impunity. The fact that the state could, with such ease, become the supreme law breaker or, as he called it, 'the terrorist,' was his abiding concern. His wide experience made for some particularly apposite observations on the Indian criminal justice system. To understand the role the police play in criminal justice, he cites the judgment of Justice A.N.Mulla of the Allahabad High Court(State of Uttar Pradesh v. Mohd. Naim, AIR 1964 SC 703. Ibid. p. 70):

Somehow the police force in general, barring a few exceptions, seems to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law. At least, the traditions of a hundred years indicate that this is what they believe. If this belief is not rooted out of their minds, there is hardly any chance of improvement... I say it with all sense of responsibility, that there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force.

To recent revelations which show that the police concocted false cases against Muslims with respect to the Mecca Masjid, Malegaon and Samjauta Express blasts, his observations on the way the Indian criminal justice system operates strike a chord:

The history of tackling dissidence and crime shows that torture and confession have been the twin engines of the legal system( Kannabiran, p.106)

The forms of illegal action undertaken by the state, be it torture or forced confessions, had sinister implications as Mr. Kannabiran noted. Quoting Justice Brandies:

Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example... If the government becomes the law breaker, it breeds contempt for law; it invites every man to become a law onto himself; it invites anarchy.(p.72)

In Mr. Kannabiran's viewpoint, the deep rooted nature of impunity arose from the state's unwillingness or inability to tolerate dissent. Turning again to his words:

Politics is treated as a crime. The subversion of law begins with the reduction of politics to a crime. After such subversion the law becomes a pretext for violence.(p.10)

Fourthly, Mr. Kannabiran was a strong critic of the fact that colonial rule still continued in post independence India. In his writing, the powerful image he drew upon to make the larger point that we as a nation are bound by the laws, institutions and mindsets of a colonial era, was the trial of A.K Gopalan for hosting a flag and making a speech on Indian Independence day for the offence of sedition against His Majesty, the Emperor! As A.K.Gopalan says

I am proud that I am being tried for creating enmity against the legally constituted Emperor of British India. All freedom lovers in this country and the leaders of the freedom movement from its birth, like Nehru, Gandhi and such leaders, have tried to create enmity against the Emperor's Government. Mahatma Gandhi has been proceeded against under Section 124-A IPC for working towards the same end.....'(p.31)

Of course, in our minds, the situation of Binayak Sen and the innumerable others against whom this law continues to be invoked in independent India bespeaks the nature of the task which still remains.

Fifthly, Mr. Kannabiran articulated what he called the idea of insurgent jurisprudence. That is, he believed that arguments in court were never just a means to achieve a result but that the means were important intrinsically as well. He strongly believed that the courts are a public arena, and arguments in court are a mode of carrying out public education as well as pushing the limits of the law. As such philosophy, history and oral poetry constituted insurgent material which were deployed in the Courts by Mr. Kannabiran. He believed that arguing in court was a way of educating the judges as well, and as such the 'result' was not all that defined what insurgent lawyering was about.

Finally, one should note that Mr. Kannabiran was a person of enormous erudition and was thus enormously well suited to the role of a public intellectual. He spent his lifetime reading widely and voraciously. As he puts it,

'Much of my own understanding and clarity has come from what I have read (voraciously) through the years.(p.x)

In my view, the wide reading in literature, philosophy and law combined with his experience gave Mr. Kannabiran a truly unique perspective. He was able to link up the concrete and local to the global and hence communicate issues with multiple resonances. He quoted Kundera, Camus, Dworkin and Pashukanis and incisively analysed Supreme Court judgments using material from, among other things, the Constituent Assembly debates. This is what makes his perspective global. As activists in India, a country the size of a continent, we sometimes share with the US a perspective, which is inward looking. Mr. Kannabiran was a corrective to any insular vision of human rights with his erudition, empathy and wide perspective.

What would taking forward his legacy mean?

To me, this means a commitment to a practice of law rooted in a concern for the marginalised, and a devotion to a lifetime of reading and work in the broadest sense. It would also mean taking forward a critique of the regimes of colonial continuity (especially in the criminal law) and aspiring to 'define power and thereby make it accountable and enhance rights'.(p. 4) His legacy is life-affirming and in a world which sets up self aggrandizement and self interest as an ideal ,his life provides a powerful counter. In the preface to 'Wages of Impunity' written in 2004 he had noted:

'If they (his writings) provide a single insight or inspiration to anyone who is seeking the tools to fight for a principle, then my labours will not have been in vain.'(p.4)

I think the greatest tribute we can pay him is to say that his work has not been the source of a single insight or inspiration, but has instead unleashed multiple insights and inspirations. The inspirations have flowed from a single chance encounter with Mr. Kannabiran, engagement with his work and of course the fact that we are today privileged to watch the moving historical documentary( The Advocate by Deepa Dhanraj) on the life and times of Mr. Kannabiran. Our challenge is to constantly multiply the insights and inspirations and take forward collectively the legacy of Mr. Kannabiran's work.

Tuesday, January 11, 2011

Frontline's cover on Binayak Sen

Frontline's latest issue is a comprehensive attempt to understand and articulate the civil society's outrage against Binayak Sen's conviction and sentence. My articles are here and here.

Article Alerts

Here are links to some of my recent articles which may be of interest to readers:

1. On the demand for JPC probe into the 2G scam.

2.Uncles on Bench

3.On the proposed amendment to RTI Act.

4. On the Supreme Court's hearing on CVC

5.On the case against Arundhati Roy and Teesta and Arundhati Roy's speech. Incidentally, I felt after reading Ananya Vajpayee's article in Seminar, both are similar in substance, if not in tone and tenor.(The Problem, Nov.2010 issue)

Politics of Judiciary

My review of B.Sen's fascinating memoirs appeared in Frontline recently. While Sen has been candid about some of his contemporaries, he has carefully avoided mentioning names, while dealing with the Court's immediate past.

The CAG & the Constitution

I think my earlier post on the CAG requires some correction: My point is merely to emphasize the importance of the CAG and the independence that the Constitution grants it; but I believe I went too far when I spoke about the CAG being the final voice on financial matters - Parliament is that voice, as a reading of Articles 148-151 reveals.

Most constitutions separate power between the legislature, executive, and judiciary. The degree of separation is almost invariably different, but the focus remains on separating powers between these three institutions. But as Bruce Ackerman captured in his pioneering Harvard Law Review piece, The New Separation of Powers, this is not always the case. The Indian Constitution, for instance, It establishes institutions that exist independently of these three traditional wings of government. The most famous of these is the Election Commission, but an equally important if often ignored example is the Comptroller and Auditor-General of India (CAG).

The principles embodied in Articles 148-151 of the Constitution establish the CAG as an authority on the Union and the States’ financial affairs. For present purposes, the independence of the CAG under the Constitution helps us better understand the ongoing controversy. To begin with, the executive has the privilege, as it should in any democracy, to raise questions about and prompt debate on the veracity of the CAG report. But it is vital to distinguish a possible disagreement with the report from an outright rejection of the report or an attack on the CAG’s legitimacy. Just as the executive cannot “choose” to accept or reject a judicial decision, it is granted no discretion in how to respond to a CAG report. Under the Constitution, the CAG is the final voice on financial accounts; the executive re-investigation of a CAG report results in the executive being a judge in its own cause. The Telecom Ministry may well disagree strongly with the report, but it has no constitutional authority to determine whether it ought to be accepted or rejected.

It is for this reason that the Constitution calls upon the CAG report to the laid before each House of Parliament, rather than to stimulate discussion amongst the cabinet. Parliament is not simply bound to debate the report on representative grounds; under the Constitution, it is only institution that can investigate the report and shape its fallout. Viewed in this light, the claim for a joint parliamentary committee may appear to gain persuasiveness. It promises to do justice to the independence of the CAG and the collective responsibility of Parliament to pay due respect to its report. Simultaneously, however, it decreases the legitimacy of the opposition’s actions: the Constitution directs parliamentary debate on the CAG report; any attempt to stall Parliament upsets the constitutional procedure set out for responding to CAG reports.

The present debate has largely ignored the constitutional imperative of the CAG report. A rejection of the report by the executive will amount, in constitutional terms, to a rejection of a judicial decision or an Election Commission verdict on which party has the numbers to form government. Politics will surely discover its own unique answer to this crises but it may be worth beginning with the Constitution.

Monday, January 10, 2011


Arjun Sheoran, a fifth year student at NLSIU who founded the free legal search engine Law Khoj has just launched a promising new site called Legalsutra which allows students and others to share academic writing. As he describes:

"Legalsutra, a non profit - non commercial venture, is a free legal knowledge and document repository. The repository not only includes variety of academic papers/projects but also archives moot memorials and class notes.

In order to encourage academic writing and interaction amongst law students pan India, Legalsutra gives students the option to comment, share, rate and upload their papers. Keeping with the spirit of free access to knowledge, Legalsutra also provides for several research tools such as search engines created solely for legal research and links which not only cover Indian legal resources but also covers foreign legal resources.

Legalsutra was created with the belief that a common platform to share knowledge and research would lead to better access to legal education and improvement in the standards of academic writing. Legalsutra is modelled on the principle that access to education and legal research resources should not be restricted to certain law schools/colleges but must be easily available to each law student with a quest for knowledge.

Legalsutra understands the growing menace of plagiarism and the impact it has on the legal writing. As clearly stated on the site, Legalsutra strongly condemns and discourages plagiarism. The site is, uniquely, designed to prevent plagiarism and a simple plagiarism check or an internet search would indicate if any work has been plagiarised from Legalsutra.

Help us by doing your bit to make this a success!"

I think there is a lot of potential in such a site and congratulate his efforts. As someone currently teaching in India though I would reemphasize Arjun's last point to students out there about plagiarism. Sites such as this should be seen as a valuable potential starting point to gather information and inspiration about a legal topic, not a place to copy from. All sources used in a paper should always be cited.

Saturday, January 08, 2011

Guest Post: Is the Binayak Sen Case really an anomaly?

This guest post has been contributed by Sidharth Chauhan, who is currently a graduate student at the University of Pennsylvania Law School.

The initial outrage at the conviction of Dr. Binayak Sen and two others for conspiracy to commit sedition and several other terrorism-related offences was amplified by the fact that all three defendants have been sentenced to life imprisonment. The trial judge’s failure to account for the material inconsistencies and omissions in the prosecution version has already been highlighted in a note prepared by Dr. Binayak Sen’s well-wishers as well as in journalistic coverage (linked in a previous post by Arun). For those who may be interested, I have tried to summarise the shortcomings in the appreciation of the evidence in a longer version of this comment (available here).

While not intending to trivialize the grave consequences that will be faced by the defendants and their families, one can easily foresee pedagogic uses of this verdict, primarily as an example of how criminal law and procedure should not be applied and interpreted. This could be in pursuance of suggestions (made by Professor Upendra Baxi among others) that mainstream legal education in India should move away from its selective emphasis on progressive decisions rendered by higher courts which are not representative of the functioning of the judicial system as a whole. Instead, more attention should be drawn towards erroneous decisions that are routinely made by trial courts that are the first point of access for litigants. Of course, it goes without saying that Dr. Binayak Sen is no ordinary litigant. The fact that he has spent nearly three decades providing healthcare among deprived tribal communities and unorganised labour undoubtedly contributed to the widespread public criticism of his prolonged detention without bail (between May 2007 and May 2009). It will continue to be a factor in public conversations as this case proceeds to the appellate stage. While it is reasonable to say that both the conviction and the unduly harsh sentence are likely to be overturned on appeal, the high-visibility of this particular decision makes it a prime candidate for thorough discussion and dissection in academic settings. The trial judge has unintentionally (and may I say unwittingly) produced a writing sample that captures many of the structural flaws in our criminal justice system – namely, legislative overbreadth and obsolescence in defining offences and prescribing sentences, numerous irregularities in investigation on part of the State police, a finding of guilt despite insufficient and unreliable evidence and to top it all a clear abuse of sentencing discretion.

There are of course many prominent voices that have alluded to the irony of convicting an acclaimed human rights defender for sedition at a time when numerous scam-tainted public officials go scot free, but that is more of a rhetorical claim which should be clearly separated from the legal considerations. To be sure, in the trial stage Dr. Binayak Sen’s defence counsel did argue that he had been falsely implicated by the State police in retaliation for his documentation and criticism of the atrocities committed by the State-backed ‘Salwa Judum’ militia which had been organised to counter-act the Naxalites. Such claims of selective prosecution are very difficult to establish since investigators and prosecutors have considerable discretion in the filing of charges and the follow-up action leading up to the framing of the charge-sheet by the trial judge. Now that the trial judge has recorded a very questionable finding of guilt, in the appellate stage the emphasis should primarily be on the quality of evidence (or the lack of it) that was relied on during trial, with the ideological overtones and comparisons with other ‘prisoners of conscience’ taking a backseat.

The prosecution’s chief claim was that the three defendants were involved in a conspiratorial relationship wherein Maoist ideologue Narayan Sanyal passed on some letters to Dr. Binayak Sen during their meetings in Raipur Central Jail, which were subsequently passed on to Piyush Guha, a Kolkata-based businessman for further dissemination among Naxalite operatives in Kolkata. The trial judge has bought the prosecution version despite there being no admissible evidence to show Dr. Binayak Sen’s involvement as an intermediary and an extremely doubtful narration about the time and location of Piyush Guha’s arrest as well as his subsequent custodial statements. The even more worrisome features of the trial court’s verdict are the illogical surmises leading up to the finding that all three defendants were involved in Naxalite activities, even though there is hardly anything on record to show specific involvement in the planning or commission of any violent or subversive acts. The one-sided tenor of the judgment is best captured by the blanket dismissal of the objections to the prosecution testimonies that were raised during the course of cross-examination. While the prosecution testimonies about the grave threat posed by Naxalite activities in general and Dr. Binayak Sen’s alleged acquaintance with several hardcore Naxalites occupy a considerable part of the decision, the defence’s objections are not even outlined and have instead been disposed off in one paragraph. It is hard too imagine how a judge can take such a one-sided view, even if it were assumed that his personal sensibilities were those of being ‘conviction-minded’ and in support of a hardline approach against Naxalite operations. As many commentators have already pointed out, political posturing and ideological beliefs can neither be a justification or a means for diverting attention away from shoddy fact-finding.

The findings pertaining to Dr. Binayak Sen’s alleged support for and involvement in Maoist activities are partly based on stray references to naxalite activities in magazines and pamphlets recovered from his residence and the contents of his personal computer ( including e-mail correspondence) that were transcribed and presented as evidence. Taken to the logical extreme, such an interpretation could imply that any individual could face prosecution for merely researching and documenting terrorist activities. As one ploughs through the text of the judgment, what initially appears to be a bundle of errors turns into a legitimate apprehension of collusion between the prosecution and the trial judge.

The proverbial icing on the cake lies in the sentencing decision. All three defendants have been sentenced to life imprisonment for conspiracy to commit sedition, which is the maximum prescribed sentence. This is a clear abuse of the sentencing discretion that is accorded to the trial judge for differentiating between the various degrees of culpability and the gravity of an offence. Even if one were to disregard the investigative lapses and flimsy evidence presented in this case and assume that the handing over of letters constituted a conspiratorial relationship, such conduct cannot be equated with acts of physical violence or direct incitement for the same. Instead, the sentencing transcript cites the grave threat posed by Naxalite activities in general as the basis for awarding the maximum sentence. It is unclear how the punishment will serve the ends of deterring Naxalite violence or even those of retribution if one were to take the view of hardliners. On the contrary, such an excessive sentence could serve as fodder for Naxalite propaganda and recruitment in the region.

It would not be stretching one’s imagination too far to see this verdict as a symptom of the many woes of India’s criminal justice system. Irrespective of the divergent and sometimes polarized positions on how to tackle the Naxalite mobilization, this case is an apt illustration of why responsiveness in the framing of penal legislation as well as fairness in investigation, prosecution and adjudication matters to all citizens. For far too long, our Parliament has delayed the necessary re-evaluation of many obsolete offences that remain on our statute books. This case amply highlights the dangers of offences that are defined in a vague and overbroad manner while providing for a wide sentencing range. The trial court’s ignorance of Supreme Court precedents which restrict the definition of ‘sedition’ to direct incitement of violent acts is not a one-off occurrence of such ignorance in the lower courts. If one takes a random sample of criminal appeals in the higher judiciary, one will readily find many cases of such erroneous application and interpretation of statutory offences. The Indian Penal Code was enacted by the colonial government in 1860 and till this day it is the mainstay of substantive criminal law in our legal system. While there have been piece-meal changes from time-to-time, both in respect of prescribing ingredients of offences and sentencing ranges, there is no sustained move towards a coherent overhaul of the criminal law. In recent years, there have been some studies such as the Draft National Policy on Criminal Justice (2007) that have suggested a holistic re-examination of the scope and justifications of existing statutory offences and sentence-ranges. It must also be reiterated that several important legislative changes in our criminal justice system have been triggered by questionable verdicts. Examples that readily come to mind are the Nanavati case in the early 1960’s where an acquittal in a ‘crime of passion’ ultimately led to the legislative abolition of jury trials, the Mathura Rape Case in the early 1980’s which led to the expansion of the definition of ‘rape’ to cover custodial circumstances as well as the prohibition on references to ‘past sexual conduct’ during trial, and in more recent times the Ruchika Girhotra molestation case which finally convinced the Law Ministry to push for an expansion of the definition of ‘sexual assault’. It remains to be seen whether the regrettable verdict given by the Raipur Court will trigger at least a piece-meal legislative change such as an amendment to the definition of ‘sedition’ under the Indian Penal Code. A more likely consequence could be the judicial invalidation of some vaguely defined offences under the Chattisgarh Special Public Safety Act, 2005 if the defence counsels choose to attack the constitutional validity of that law before the higher courts.

Tuesday, January 04, 2011

Kannabiran: The Doyen of the Civil Liberties Movement in India

This is a guest post from Dr. Sudhir Krishnaswamy, a leading constitutional law scholar and activist who has taught in several Indian law schools and abroad.

KG Kannabiran passed away on 30th December 2010. India will enter the second decade of the 21st century without its leading civil liberties lawyer for the last four decades. It would be contrary to Kannabiran’s iconoclastic and irreverent manner to write a hagiographic sentimental obituary. The greatest tribute that I can pay to his life would be to recognize and celebrate his approach to law and lawyering that should inspire generations of lawyers to follow his path. My qualifications to write this obituary are tenuous: I am not a practicing lawyer by profession nor am I a personal friend or confidante. So I cannot share with you war stories at court nor can I render an alternative account of his life and punctuate it with touching personal anecdotes. I write this as an academic lawyer who has followed his life and work from a distance but with an acute awareness that he embodies an approach to cause-lawyering that exemplifies the best traditions that any lawyer in India should aspire to.

The typical Indian lawyer revels in their anti-intellectual approach to law. They scoff at any attempt to theorize law and insist on the irrelevance of these academic efforts to their everyday practice. Kannabiran was similarly disenchanted with academic theorizing that employed obtuse prose and neologisms that required an academic translator to make such texts intelligible. However, he practiced and refined an ecumenical approach to legal scholarship that would stand the most rigorous academic scrutiny. He engaged with the case law of the courts which he subjected to close reading and critical analysis in his court room practice as well as writing. His essay on the evolution of the law of personal liberty in India after Independence is an excellent illustration of his ability to coherently weave together decisions of the Indian and US Supreme Court, speeches in Parliament and the Constituent Assembly, Pashukanis, Dworkin and Anatole France to expose the misinterpretations of Article 21. Anyone who reads this essay is left in no doubt about the essential continuity of legal practice and legal theory –any good practitioner invariably develops keen theoretical insights into law.

I met Kannabiran for the first time in Bangalore on the sidelines of a Alternative Lawyering Conference in 2001. The Conference traversed varied engagements with law and the legal system that could be characterised as ‘alternative lawyering’. I was struck by the steadfastness with which Kannabiran advocated an old-fashioned engagement with substantive law and the legal system. At a time, when ‘revolutionary commitment’ was assessed by the shrillness of your denunciation of law and the legal system and one’s distance from the practice of law in the courts, Kannabiran stood out as a beacon of rationality and moderation. While he was aware that ‘in a perpetually misgoverned society, any movement for good governance... according to law becomes rebellion’ he did not recklessly conclude that law was irretrievably an oppressive device that should be shunned and disregarded. His exceptional career as a human rights defender for over 5 decades stands testimony to the value of a critical but extensive engagement with law and the courts in India.

A civil liberties law practice in India requires one to grind out many days at the uninspiring and chaotic criminal courts across the country. Successes are few and irregular while failures are plenty. Our post-Independence paramilitary forces compound and accentuate the failings of our colonial police forces making structural change look remote. In this bleak scenario, a civil liberties lawyer needs great fortitude and resolve to stick to this task. Kannabiran’s long innings holds out many lessons for those who will follow in his footsteps. His capacity to carry himself lightly and to avoid drowning under the weight of his political convictions endeared him to all those who came across him. I suspect that his deep engagement with history and literature allowed him to develop a unique perspective to his work that allowed him to celebrate the victories and to bear the losses with equanimity. His draft of a letter to a Judge titled ‘Sanjay Dutt in the First Person’ highlights these sensibilities. The letter begins ‘I am no Gandhi or Tilak or Castro, yet I think I have a right to make a statement. I am not like them, though I am as well known as they were in their days, but I am not as great.’ The letter then sets out a scathing account of the role of the criminal justice system in the 1993 Mumbai riots.

Kannabiran has left us with a rich legacy in the courts and through his writing. Ironically he passed away in the same week that Binayak Sen was convicted of sedition as if to remind us of the enormity of the challenge to make India a reasonably civilized country governed by the rule of law. His response to this court order would not be to condemn the legal system and advocate it’s abolition but to redouble one’s efforts to compel the courts and our legal system to rectitude. Our dedication and efforts to achieve these tasks would be a truly worthwhile tribute to his life and work.

The Supreme Court Repents for ADM Jabalpur

As several newspapers have reported, the Supreme Court in Remdeo Chauhan v. Bani Kant Das, has admitted that its notorious Emergency-era decision, ADM Jabalpur, may have violated several persons' human rights. Welcoming this finding, the Deccan Herald argues that the Court has succeeded in "wip[ing] out Emergency era blot." According to the Hindustan Times, the Court has finally acknowledged its gross injustice to the Emergency's victims. Interestingly enough, Remdeo Chauhan was decided on November 19 last year by a two-judge bench comprising Justices Asok Kumar Ganguly and Aftab Alam. Yet, legal commentators and journalists seem to have woken up to its significance only this past weekend.

There are probably many reasons why Remdeo Chauhan went unnoticed. The Court's remorse about Jabalpur was buried in the middle of a lengthy judgment. The underlying matter in Remdeo Chauhan involved a capital offence,; it was not a preventive detention case like Jabalpur. But these are'nt convincing justifications for why the mainstream media or the legal commentariat overlooked Remdeo Chauhan (yes, this blog must also share the blame). In fact, the decision would have been largely ignored if the political controversy over who is to blame for Emergency had not erupted.

The November decision was actually the Court's fourth ruling involved Remdeo Chauhan, who was sentenced to death for murdering one Bhabani Charan Das and three family members. The case first reached the Court in 1999 as an appeal from the Guahati High Court's decision upholding Remdeo Chauhan's death sentence. A key issue before the sessions court was whether Chauhan was under sixteen when he committed the murders, and consequently subject to the Juvenile Justice Act of 1986. After examining the medical evidence, the trial judge concluded that Chauhan was not below sixteen years when he killed Das and his family. Contrary to what several newspapers have reported, the question was apparently not re-litigated in the High Court appeal. And the Supreme Court bench, which confirmed the High Court's verdict, also did not discuss this issue.

Facing the gallows, Chauhan asked the bench to review its judgment apparently citing, among other things, the age issue. The bench comprising Justices KT Thomas and RP Sethi declined to reopen the conviction. But it agreed to let a larger bench review whether Chauhan's juvenile status ought to be reconsidered. A larger bench was duly constituted by adding Justice SN Phukan, and he heard the matter together with Thomas and Sethi. This three-judge bench split two-to-one in upholding the sentence in May 2001. Based on the evidence, Sethi and Phukan held that the death sentence should not be disturbed with Sethi firmly insisting that Chauhan was no child when he committed the murders.

Thomas, who had originally voted to convict Chauhan, dissented in the review decision. He was no longer convinced by the medical evidence, and wondered whether Chauhan could be hung even though it had not been "positively established" that he was older than sixteen. This medical uncertainty, Thomas concluded, was grounds for substituting Chauhan's death sentence with life imprisonment. Although Phukan joined Sethi in upholding the death sentence, he seemed persuaded by some of Thomas's reasoning. Accordingly, he advised Chauhan to file a petition for mercy or commutation based on Thomas's views.

Chauhan's lawyers had already considered that option and asked the Governor of Assam to intervene even before the Court's May 2001 review decision was handed down. The matter was also brought before the National Human Rights Commission based on a law professor's article, which argued that a juvenile could not be executed. The Commission waited until the Court delivered its May 2001 review decision. Relying heavily on the Thomas dissent, the Commission (comprising three former Supreme Court judges) issued "recommendations" in support of Chauhan's plea for commuting his sentence.

In January 2002, the Governor commuted Chauhan's sentence to life imprisonment without a detailed explanation (he did not mention whether he had relied on the Commission's recommendations). This action set off a third round of litigation for relatives of Chauhan's victims promptly challenged the commutation in an Article 32 petition before the Supreme Court. Somewhat surprisingly, the Court allowed the petition in May 2009 and set aside Chauhan's commutation. In its writ decision, the bench pointedly criticized the Commission for intervening in the case without proper jurisdiction. Through a second review petition, Chauhan asked the Court to reconsider its writ decision on the ground that he did not have an opportunity to present his position. It was in this decision on second review that the Court apologized for its earlier Jabalpur decision.

In their judgment, Justices Ganguly and Alam reject Chauhan's claim of inadequate representation. They point out, somewhat unconvincingly, that Chauhan's legal-aid counsel had filed a counter-affidavit in the Article 32 proceedings, although they acknowledge, without additional comment, that the lawyer had not participated in the oral arguments. The bench then discusses whether there are other grounds to entertain the second review. After carefully reviewing applicable case law, the bench considers whether the Court erred in admonishing the Commission for intervening on Chauhan's behalf. Ganguly notes that an underlying assumption of the May 2009 decision was that the Supreme Court cannot violate human rights. This assumption, he argues, is not correct, as it often has to correct errors by lower courts and tribunals that breach the parties' human rights. Ganguly then goes on to state:

The instances of this Court's judgment violating the human rights of the citizens may be extremely rare, but it cannot be said that such a situation can never happen. 

Ganguly argues that Jabalpur was one such situation where there is "no doubt that the majority" violated the fundamental rights of a larger number of people. He then cites Chief Justice Venkatachalliah's 2009 Khanna lecture and concludes that Justice HR Khanna's dissent in Jabalpur became the "law of the land" after the Forty-Fourth Amendment.

That Jabalpur was wrongly decided is no breaking news. This fact has been acknowledged by the Court itself, most recently in Coelho v. Tamil Nadu. Speaking for a nine-judge bench, Chief Justice Sabharwal conceded that that Jabalpur's restrictive reading of Article 21 is no longer good law. But neither Remdeo nor Coelho discuss the real human impact of Jabalpur. Reversing several courageous high court judges, Jabalpur harshly denied thousands of Emergency detenues the right of habeas corpus. It was our Korematsu moment, but only much worse. Not only did the government single out political opponents and activists for arrest and incarceration, it tortured and illtreated several of them. The Court turned a blind eye to these abuses. For that reason, just as Alexander Bickel condemned America's Dred Scott, India's Jabalpur was a "ghastly error." The decision left an indelible blot on our Court's constitutional jurisprudence, and a dark haunting stain on our national imagination and pride.

Even today, it is impossible to read Chief Justice Ray's majority opinion in Jabalpur without an enveloping feeling of disgust. "Liberty is confined and controlled by law, whether common law or statute," Ray wrote blithely. Dismissing the possibility of human rights abuses during the Emergency, he admonished the petitioners for raising phantom claims:

There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a thing will happen. 
These lines reveal the degree to which Ray's ideological fervour and allegiances interfered with his ability to effectively reason, let alone impartially adjudicate. With Jabalpur and other decisions, the pliant Ray converted a functioning apex court into the government's rubber-stamp. He needlessly capitulated to Indira Gandhi's totalitarian impulses with no concern for the freedoms and liberties of those he was sworn to protect. Indeed, there are few judges whose very name still incites so much rage and anger among lawyers and activitists.

But other members of the Jabalpur majority must also share the taint of Jabalpur. Justice Beg breezily endorsed the government's phoney claims about the "maternal care" with which the detenues were "well housed, well fed and well treated." And Justice Chandrachud naively chided detenus’ counsel for fear mongering that the government could “whip and strip and starve the detenue and . . . even shoot” them. Sadly, there were several documented cases of human rights abuses during the Emergency, including the infamous Rajan episode in Kerala, in which police officers committed exactly those atrocities. 

Ganguly in Remdeo Chauhan seems to attribute Jabalpur's demise to the Forty-Fourth Amendment, which he says, vindicated Khanna's dissent. In this respect he does not follow Coelho, which holds that Jabalpur has been "impliedly overruled by various subsequent decisions." Perhaps, this is because Coelho does not tell us what those decisions are and ignores another nine-judge decision, Attorney General v. Prajivandas where Jabalpur's correctness was expressly left open. Whether it was the Forty-Second Amendment or the Court's own decisions that, in fact, overturned Jabalpur is a question worth examining further. We must also attempt to better understand why, inspite of Coelho, several high courts continue to cite Jabalpur in their opinions, as if it were still good law.

While we ponder those questions, it is important to celebrate the Court's unvarnished acceptance that Jabalpur violated several persons' basic human rights. This is especially because the Court has never before admitted its own institutional culpability in fostering and enabling the Emergency. Remdeo Chauhan is a late, but welcome, act of contrition in that respect. Through it, the Court seeks to make amends for having failed the Indian people when they needed it the most. Asking for forgiveness is sometimes the best way to demonstrate that its decisions are always final, but never infalliable.

Monday, January 03, 2011

Supreme Court Composition (1985-2010)

In a study which has been published in this week’s edition of the EPW (available here), I examined the composition of the Supreme Court of India between 1985 and 2010 (i.e. between the terms of Chief Justices P.N. Bhagwati and S.H. Kapadia). My study broadly yielded the following observations: (1) The age at which judges are appointed to the Supreme Court has increased – indicating that judges today on average serve shorter terms on the Supreme Court of India (see the discussion here regarding the 114th constitution amendment bill). (2) The percentage of the members of the court today who previously served as High Court Chief Justice has more than doubled from Chief Justice P.N. Bhagwati’s time – and today Supreme Court judges are overwhelmingly picked from the pool of High Court Chief Justices; (3) The average tenure of Supreme Court judges as High Court Chief Justices has reduced – indicating that judges who make it to the Supreme Court serve shorter terms as High Court Chief Justice, and in fact, often this short period of time is spent as Chief Justice of more than one High Court (27% of the present court served as Chief Justice of more than one High Court); (4) There is some evidence that seats on the Supreme Court of India are shared on the basis of regional representation, and the High Courts of Bombay, Allahabad and Karnataka have over a twenty five year period witnessed the most consistent representation on the court (although, of late, Bihar and Delhi have shown similar trends). In the appendices I have set out the composition of the courts of each of 22 Chief Justices of India between 1985-2010 (including appointments, retirements, or in rare cases resignations/deaths during a Chief Justice's term), and relevant biographical information concerning 127 judges who served on the court during that period which I collected for the study. The study makes no substantive claims about the Supreme Court of India, but only seeks to analyze its composition.

More on Binayak Sen's conviction

To add to the detailed post that Arun has put up, here is an opinion piece I wrote on Binayak Sen's conviction. It appeared in The Hindu newspaper. I've been following and reporting the details of this case for the last three years, and can safely add that the phrase "travesty of justice" couldn't be more suited. Whatever your politics, if you believe in the rule of law......