Friday, July 29, 2011

32 Years Later Not Much Has Changed

Today's front page of the Times of India carries a story about a 19 year-old who has been in jail in New Delhi for the past year on the charge that he stole 200 Rs because he could not post bail (which was 10,000 Rs). Ordinarily if convicted he would serve three months, so on the advice of his lawyer he finally reluctantly pleaded guilty yesterday and was released. (full disclosure: I know both the reporter of this story and the legal organization - HRLN - that represented him).

To anyone who has worked around the criminal justice system in India there is nothing new to this story. In Delhi alone there are hundreds if not thousands like him who have already served more time than they would likely ever be convicted for. They just can't afford bail. Essentially, because they are poor they are trapped. While in jail they lose their jobs, they lose touch with their families, and they frequently become depressed and despondent, making them susceptible to drug and alcohol addiction. They lose, society loses, tax payers lose.

32 years ago one of the first seminal Public Interest Litigation cases was decided: Hussainara Khatoon vs. State of Bihar in which Justice Bhagwati eloquently ordered the release of thousands of under-trials in Bihar, trapped by a bail system that like today's essentially criminalizes poverty. Basically, the order said that when prisoners could show ties to the community a court should consider releasing them without them having to post bail.

I am not a criminal law expert, but from my perspective it strikes me despite all the reverence still given to the Hussainara Khatoon decision little has changed. Groups like Commonwealth Human Rights Initiative still tirelessly campaign on this issue and I know the High Courts and Supreme Court have lower courts periodically review their undertrial situations, but the problem is still entrenched.

As TOI points out in their brief editorial on this at the bottom of the article it seems that at the very least persons held should be released once they have served the maximum possible sentence they could have . Then if they don't return for the actual court date they can be held liable, and potentially convicted in their absence, but the penalty would still be time served.

Still, this doesn't address the fundamental problem, which is the poor being held far too long just because they can't afford bail. One option to think about might be to let prisoners out without bail if they have already served more time than an ordinary sentence for their alleged crime. The longer lasting solution would likely include both exploring other alternative forms of bail for the poor and providing them with better legal aid so that their cases can move through the system more quickly.
(Note: this post was revised because I had earlier said that the maximum he could have served was three months. In fact that it is instead a typical sentence for the charge - which still seems quite long even if one actually did steal 200 Rs).

Tuesday, July 26, 2011

Anna Hazare & the middle classes

The Lokpal Bill has been carefully dissected on these pages. I use another scalpel, in this essay in the latest Economic & Political Weekly on what the Anna Hazare movement and India's middle classes say about each other.

Friday, July 22, 2011

Nandini Sundar on the Salwa Judum Order

The Salwa Judum order by the Supreme Court has attracted much comment from members of this blog (see Rohit, Madhav and my reactions). Nandini Sundar, one of the petitioners in the case, has defended the order in an op-ed today. Responding to some criticism about the appropriateness of the Court's discussion of neo-liberalism, she says:

While the order has been widely welcomed, much media space has been occupied by those opposed to the judges’ framing of the problem in terms of neo-liberalism. Yet few have been able to dispute their facts — the growing inequality, the massive displacement of people from their resources, the desperation that drives people to arms. Even the home ministry’s 2006 status paper conceded: “Naxalites operate in a vacuum created by inadequacy of administrative and political institutions, espouse local demands and take advantage of the prevalent disaffection and injustice among the exploited segments of the population and seek to offer an alternative system of governance which promises emancipation.” If the judges are wrong, why the need for a food security bill, resettlement and rehabilitation bill, or an integrated action plan?

There appears to have been three kinds of criticisms of the Court's use of neoliberalism as an explanation of Maoism:
1. That the causal connection between the two is factually incorrect. This is the criticism that Nandini Sundar primarily responds to.
2. That, irrespective of the veracity of the connection, it is inappropriate for judges to comment upon it (usual separation of powers reasons relating to judicial inexpertise in polycentric cases).
3. That, irrespective of the veracity of the connection, it was unwise of the judges to make that connection because it makes an otherwise sound order unnecessarily vulnerable to criticism.

On the first criticism, I am no expert over the matter, but I suspect that there probably is at least some correlation (if not a direct causal connection) between certain economic policies and insurgency. The last two criticisms draw greater force from the fact that this discussion was thoroughly unnecessary to reach the conclusions that the Court did. On judicial propriety, I believe that there may be cases (given the nature of our Constitution) where judges are entitled to discuss economic policy--this case, however, was probably not one of them.

In the main, however, my criticism falls in the third category. When judges are writing a judgment that they know will be controversial, it is wise for them to make sure it rests on solid grounds, and does not provide easy targets (at least not unless their constitutional duty leaves them with no other option). An analogous case that springs to mind was the Supreme Court's judgment in Shah Bano case. A wiser Court could have easily achieved the same result with much less fuss (indeed, the Supreme Court has in fact achieved the same result with much less fuss before as well as after that infamous case). As Madhav points out in his piece, the rhetoric around neoliberalism in this case has unnecessarily obscured the thorough soundness of this Order.

Call for Papers - Socio-Legal Law Review

Socio-Legal Review

Call for Submissions

Socio-Legal Review welcomes contributions for its eighth volume to be released in 2012.

About the Journal

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

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

SLR has been listed in the Directory of Open Access Journals and has been uploaded on Westlaw and Heinonline. It was supported by the Modern Law Review for three years and entered into an agreement with SAGE in 2010, to sponsor the Annual SLR-Sage Essay Writing Competition.


  1. All contributions submitted to the journal should be original and should not be simultaneously considered by any other publication.
  1. The Editorial Board has refrained from imposing a theme. A submission is welcome as long as it fits within the general mandate of the Journal, as outlined above.
    1. Contributions should be mailed only in a soft copy to, the subject of the mail being ‘Submission for 2012 volume’. Biographical information is to be provided in a removable title page.
    2. The Journal is accepting contributions for Articles and Short Articles. With reference to Articles, contributions should not ordinarily exceed 8000 words. With reference to Short Articles, contributions should not ordinarily exceed 5000 words. The Editorial Board reserves the right to reject without review manuscripts that exceed the word limit substantially.
    3. The Journal also accepts Notes from the Field, which are shorter pieces designed to provide a glimpse into a new legal strategy, political initiative or advocacy technique applied in the field, a current problem or obstacle faced in, legal reform or development work, or a new issue that has not yet received much attention and needs to be brought to light. Contributions should not exceed 3000 words
    4. The last date for submission is November 15th, 2011. Submissions may, nevertheless, be made after this date. They will be considered for publication in the next volume.
    5. All submissions are to be made via e-mail as .doc or .docx documents.
    6. SLR follows the Harvard Blue Book – A Uniform System of Citation (19th edn.) style of referencing. Contributors are requested to comply with the same.
  2. For any clarifications, please mail us at

Tuesday, July 19, 2011

Social Rights in India

In the new issue of the International Journal of Constitutional Law, I study the social rights jurisprudence of the Indian Supreme Court. I make many arguments, and the piece is available here. 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, what is termed as, 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."

Friday, July 15, 2011

Supremacy of Parliament

In a provocative piece, C.V.Madhukar asks whether the Indian Parliament is really supreme as a counter to those who question Anna Hazare's politics. To substantiate his claim that Parliamentarians are responsible for not treating Parliament as supreme, Madhukar lists six grounds. These are: One, Bills are passed without discussion; Two, there is no demand from MPs for a deeper consultative pre-legislative process; Three, MPs do not ask Government why the Standing Committee recommendations on Bills referred to it are not completely accepted; Four, Members show little interest in Private Members' Bills, and very little time is devoted to their discussion; Five, Anti-Defection Law reduces MPs to mere head-counts, and most MPs simply endorse their parties' positions on policy matters, fearing disqualification, thus making their participation in the law-making process a farce; and Six, power to convene Parliament remains with the Government, rather than the MPs themselves, enabling the Government to delay convening it, so that Parliament meets only for a few days.

I have a small quarrel over the implicit assumption in this piece. The assumption is that Anna Hazare's politics is popular because Parliament, in practice, is not supreme. Let us, for the sake of argument, imagine that Madhukar's six grounds do not exist. Would it have guaranteed the passage of an effective Lokpal Bill much earlier than now? I doubt. Would it have at least limited Anna Hazare's following? I again doubt.

I disagree with Madhukar on the substantive grounds too. I agree that Parliament passes many Bills without discussion. How does it make it less supreme?Secondly, if MPs consider themselves supreme, why should they bother about the need for a mechanism to ensure pre-legislative consultative process? Thirdly,if Parliament is supreme, how a Standing Committee, which obviously enjoys less stature than the House itself, can expect that all its recommendations must be accepted by Parliament? Grounds 4,5 and 6 completely overlook the centrality of political parties in Indian Parliament. Grounds 4, 5 and 6 are not new phenomena - they have been characteristics of Indian Parliament right from the beginning. Does it suggest Indian Parliament has never been supreme? Then the argument that Parliament supremacy has been eroded in recent times loses its strength. No doubt, our Parliament meets for less number of days in a year than what it used to earlier. But would frequent meeting alone make Parliament more supreme than what it is now? I think Parliament's supremacy is understood in terms of the functions it performs when it meets, rather than X number of meetings that it holds.

Wednesday, July 13, 2011

NAC's style of drafting Bills

The National Advisory Council (NAC) has in its agenda, among other things, giving legislative inputs to the Government. This it does, by preparing draft Bills on important issues. But little is known about how it goes about this exercise, notwithstanding the transparency which marks its website. The Draft Bill on Prevention of Communal and Targeted violence, prepared by NAC, is being submitted to the Government for its consideration, after NAC put its first version on its website, inviting comments. After the deadline for receiving the comments was over on June 4, the NAC agreed to 49 amendments on its first draft. Even though the NAC had constituted a Drafting Committee and an Advisory Committee, very little is known about what were the comments of members in these committees, and whether the NAC considered them at all at the drafting stage, and if some of them were rejected, why. In this article, I bring to light some of the misgivings on the final draft which the NAC has produced. If some of the critics who served on the AC and DC are to be believed, the NAC's in-house style of democratic decision making leaves a lot to be desired. If consultation with experts proves to be a farce, NAC's credibility will be at stake.

In another article, I examine the AG's advisory opinion to exclude CBI from the RTI Act's purview, and question some of his assumptions. The Law Ministry, which favoured a partial exemption of CBI from the Act, is no less culpable. The erstwhile Law Minister, Veerappa Moily, might have been shifted to another Ministry for other reasons, but one wishes the Prime Minister considered this as reason enough for shifting him.

Salwa Judum and the Supreme Court

In two excellent posts (here and here), Rohit and Tarunabh have brought to light interesting aspects of the decision in Nandini Sundar. In today's Hindu newspaper, I offer my thoughts on the order (here). In particular, I argue that we need to engage more deeply with the legal significance of the decision, and stop limiting our focus to the bizarre but largely irrelevant rhetorical flourish contained in the order.

Sunday, July 10, 2011

IP Research Fellow Position at NUJS

Applications invited for the position of IP Research Fellow at WB NUJS, a leading Indian law school. Further details available here. Last date for application is the 5th of August 2011.

Friday, July 08, 2011

Anna and pre-legislative scrutiny

Given that this blog has discussed the Hazare campaign in detail, readers may be interested in my EPW article on the legislative reform lessons we should learn from it. I have made similar arguments in a more succinct form in this op-ed published by the New Indian Express. Some excerpts follow:

... the flawed institutional set-up of the NAC entails the same twin dangers as extra-institutional interventions like those of the Anna and Ramdev: the danger from selection and the danger from competing representation. To the question ‘Who should make laws?’ the founders of our constitution rightly answered, ‘The people, through their directly elected representatives’. The question we are asking now is: ‘Who should be consulted while making laws?’ The answer to this question is: Those who will be affected by these laws, and experts who have special knowledge of the issues involved. Unlike direct elections, however, there isn’t any impartial selection process which helps us identify those affected and those with expertise. Allowing power to make this selection may facilitate the elite, corporate and sectarian capture of the state.
To guard against the danger from selection, participation in the law-making process must be transparent, universal, deliberative and institutionalised.
The danger from competitive representation is equally pernicious. When Ramdev claims to live in the hearts of millions of citizens, he is claiming representative legitimacy without having demonstrated it in the only constitutionally recognised manner: winning an election. Similarly, a body like the NAC which presents itself as an interface between the state and civil society will inevitably begin to compete with Parliament for representative legitimacy. If our democracy is to survive, elected legislatures alone should be able to claim representative legitimacy. So long as politics — through the universal right to stand for elections — is open to everyone, there should not be any compromise on this principle. Admittedly, there is a strong case for dismantling the barriers of money, muscle and ménage that currently prevent ordinary citizens from entering politics.
The solution, clearly, lies in strengthening Parliament by augmenting its democratic credentials, rather than weakening it by extending legitimacy to competitive claimants of popular representation.
It is in this context that one must welcome the decision taken by the NAC last month to ask its working group on transparency to ‘evolve a policy on pre-legislative consultative process’. Ironic though it is, the most important contribution of the NAC to Indian politics will be to chart the path to its own irrelevance. As it scripts its suicide note, we should wish it the very best.

Thursday, July 07, 2011

Nandini Sundar v State of Chattisgarh

This post continues the conversation Rohit has already begun on this very interesting case. The following are the most important orders given by the Justices Sudershan Reddy and Surinder Singh Nijjar of the Supreme Court in the case of Nandini Sundar v State of Chattisgarh (2011):

1. The unguided power under the Chattisgarh Police Act 2007 to appoint Special Police Officers is declared unconstitutional. An exception is permitted for non-combat purposes such as relief assistance in disasters.
2. The state of Chattisgarh is to refrain from using SPOs for any other purpose, and must recall all firearms that have been distributed. It must provide security to these SPOs.
3. It must prevent the operation of Salwa Judum and other private armed groups.

The Court found that the SPOs are mostly poor, young and uneducated tribals. They are provided with negligible training, burdened with all the responsibilities of a police officer, provided with fire arms, and used in combat operations against naxals. In this role, they are quickly marked as targets by naxals. At one point, the Court described them being used as cannon-fodder and held that their constitutional rights under Articles 14 and 21 were being violated.

The Court did not spend much intellectual energy to justify its Salwa Judum order. It is an obvious point that the State must not tolerate, let alone encourage, private militias - the Court treated this as such.

The following off-the-cuff comments are presented in order to inspire debate:

1. The legal reasoning of the Court is very sound, and in keeping with a great tradition of judges standing up to political power seeking suspension of civil liberties during emergencies. The Court disagrees with Cicero to say 'Laws cannot remain silent when the canon's roar.' (para 71) Standing up for civil liberties, especially at the times of crisis, is a classic counter-majoritarian judicial function which judges across the world have proudly performed time and again (and one that our own Supreme Court miserably failed to perform in ADM Jabalpur in a different age). The Court insists that 'The fight against terrorism and/or extremism cannot be effectuated by constitutional democracies by whatever means that are deemed to be efficient. Efficiency is not the sole arbiter of all values, and goals that constitutional democracies seek to be guided by, and achieve.' In this insistence no judicial impropriety or breach of separation of powers is evident.

2. The case is yet another remarkable example of the difficulties constitutional courts face in dealing with evidentiary issues. India has one of the few constitutions which allow constitutional courts to be courts of first instance in such a large number of cases. Bereft of the facts determined by a trial court in accordance with well-established rules of evidence, the Court is limited to reading between the lines in conflicting affidavit evidence. We saw similar problems in cases such as Narmada Bachao Andolan and in the Ayodhya case. (Most other constitutional courts have been known to exercise their original jurisdiction extremely sparingly for two reasons - first, as already pointed out, the trial process is the best way to judicially determine facts. Second, if another court has applied its mind to a case, legal issues are clarified and an appellate court has the benefit of at least one other reasoned opinion before making up its own mind. Arguably, this reduces the chances of serious mistakes.)

To clarify, I do not intend this point as a criticism of what the Court did in this case. If anything, the analysis of the patchy and difficult evidence before the Court is rather commendable. Its job would have been much easier, however, if it had the benefit of facts determined by a trial court.

3. The use of public interest litigation to bring this action is fascinating. There was clear public interest involved in the case (the fear that thousands of unemployed armed men scarred by political violence can destabilise society). While this was one of the reasons for the Court's orders, these orders were also justified in part on the basis that the constitutional rights of SPOs were violated. The irony is that the only interested voice absent in the proceedings was that of an SPO. Some of the language used by the Court to describe the tribal youths recruited as SPOs is cringe-makingly paternalistic (see paras 48 and 50), if thoroughly well-intentioned. (For a good discussion of the democratic deficit in associative and public interest standing, see Cane, 'Standing up for the Public' 1995 Public Law 276.

4. Perhaps the most intriguing aspect of the case is contained in the first 22 paragraphs. These paragraphs emphasise the evils of unbridled capitalism and highlight the constitutional mandate for a welfare state. The judges see socio-economic deprivation as the root cause of insurgency in India. While I am politically sympathetic the position articulated by the judges, I find it intriguing that the judges voice these fairly controversial opinions (on what some may term 'policy issues') even though it was somewhat unnecessary to deciding the issues at hand. I think I have issues concerning judicial craft rather than judicial impropriety in mind.

Tuesday, July 05, 2011

No More State Terror: Salwa Juddam Unconstitutional

In a pathbreaking judgments, Justices Reddy and Nijhar of the Supreme Court ruled that the Chattisgarh governments arming of tribals to act as vigilantes as unconstitutional. The judgment can be found here.

I hope to analysis this at length later, and I am sure the other commentators will have much to say, but I wanted to flag some aspects of this case that were not related to the judgement.

-The petitioners, Nandini Sundar, Ramachandra Guha and EA Sarma are distinguished academics and this model of the PIL harkens back to the first public interest litigations which were filed by individuals (Sheela Barse, Olga Tellis, the early MC Mehta cases). It is in some ways a departure from the more organized generation II PILs which have been fought with the support of organizations and advocacy groups.

Perhaps an important mode of action to consider in a period when the urban middle classes claim to be politically disenfranchised.

- A number of the lawyers appearing for the petitioners (such as Menaka Guruswamy and Bipin Aspatwar) represent a new generation of the Supreme Court Bar engaged in civil liberties cases.

-The judges use diverse sources (ranging from Joseph Conrad to Joseph Stiglizt) but use them very effectively. The language of the judgment is crisp and gives no figleaf to the state to hide behind. The opening paragraphs of the order are striking

"We, the people as a nation, constituted ourselves as a sovereign
democratic republic to conduct our affairs within the four
corners of the Constitution, its goals and values. We expect the
benefits of democratic participation to flow to us – all of us
-, so that we can take our rightful place, in the league of
nations, befitting our heritage and collective genius.
Consequently, we must also bear the discipline, and the rigour
of constitutionalism, the essence of which is accountability of
power, whereby the power of the people vested in any organ of
the State, and its agents, can only be used for promotion of
constitutional values and vision. This case represents a yawning
gap between the promise of principled exercise of power in a
constitutional democracy, and the reality of the situation in
Chattisgarh, where the Respondent, the State of Chattisgarh,
claims that it has a constitutional sanction to perpetrate,
indefinitely, a regime of gross violation of human rights in a
manner, and by adopting the same modes, as done by4
Maoist/Naxalite extremists."

-I am struck by the courts use of fraternity as a constitutional principle, a angle that Tarunabh Khaitan has called to attention before

More to come.