Sunday, March 24, 2013

The Paradox of the Fundamental Right to Property in the Indian Constitution

In a talk recorded in the form of a podcast on "The Paradox of the Fundamental Right to Property in the Indian Constitution", I argue that the answer to the puzzle surrounding the chequered history of the fundamental right to property in India lies in the drafting of the constitutional property clause by the Constituent Assembly, a process that occurred over a period of two and a half years and engaged the finest political and legal minds in the country. 

I go on to describe the social, political and economic conditions and the operating intellectual discourses within which the Constituent Assembly debated and drafted the fundamental right to property in the Indian Constitution and argue that it was both the lack of consensus amongst the drafters and the paradoxical nature of the constitutional property clause that were responsible for its chequered history. But because property and property law is central to the way that our economic, social and political relations are organized, in telling this story, I also try to piece together a narrative of the broader social, political and economic structure that we devised for ourselves post-independence and how that has changed with the changes that we have made to our property laws and property relations since then, including the amendments to the fundamental right to property and its subsequent abolition. 

An edited transcript of the talk is also available on Previous writings on this blog on the fundamental right to property and related issues of land acquisition can be accessed here

New book on Nepal's constitutional journey

Constitutional Nationalism and Legal Exclusion: Equity, Identity Politics and Democracy in Nepal by Mara Malagodi

This book is a detailed case study of Nepal's post-1990 constitutional experience. It examines the complex relationship between law and politics, and emphasizes the role of cultural identity in making institutional choices relating to the framing and implementation of the Nepali Constitution. The volume also analyses the patterns of legal exclusion that resulted in the growing politicization of identity, the de-legitimization of the 1990 Constitution, and the current demand for state-restructuring based on ethnic federalism and group rights. The author, tracing the evolution of Nepal from a constitutional monarchy to a republic, analyses the drafting of the 1990 Constitution, the impact of the Maoist insurgency (1996-2006) on demands for constitutional change, the relationship between conflict and demands for recognition, and the role of Nepal's Supreme Court in the articulation of identity politics. Based on pathbreaking research, this volume would be immensely useful to scholars, teachers, and students of law, politics, and international relations.
The book is available here.

In the spring of 1990 a People’s Movement led by the underground political parties succeeded in restoring democracy to Nepal. After three decades of monarchical autocracy, the Himalayan Kingdom embarked on a delicate phase of transitional politics. A new constitution was drafted in 1990 to institutionalize the compromise between the King and the political parties. Nepal’s regime change opened a Pandora’s box of identity politics.  Demands for recognition by women, dalits, and the country’s many ethnolinguistic, regional, and religious groups featured prominently in the constitution-making debates. The 1990 Constitution, however, adopted the strategy of ‘unity in diversity’ and institutionalized ethnocultural notion of the Nepali nation revolving around historically hegemonic Parbatiya narratives: Hinduism, the Shah monarchy, and the Nepali language. The ethnocultural articulation of Nepal’s national identity in the 1990 constitutional settlement, together with its successive implementation, raised serious concerns about the legal exclusion of many segments of Nepali society. 

Adopting the approach of historical institutionalism, this volume analyses key issues in Nepali constitutional politics: constitution-making dynamics in the 1990 transition, demands for constitutional change during the Maoist insurgency (1996–2006), patterns of legal exclusion leading to a growing politicization of identity, the impact of Supreme Court–level constitutional adjudication, and current demands for State-restructuring focusing on ethnic federalism and group rights.  

A timely empirical study based on the debates of the Constitution Recommendation Commission, Nepali legal sources, and interviews with key constitutional actors conducted by the author, this volume will be invaluable for scholars, teachers, and students of law,  political science, and international relations, as well as lawyers, judges, researchers, and policymakers interested in Nepal, India, and other South Asian jurisdictions.

(Based on the flyer sent by OUP)

Thursday, March 21, 2013

Diplomatic Immunity of the Italian Ambassador

Shreya Rastogi (V Year, NLU Delhi) and I co-authored an article titled 'Diplomatic immunity in peril' that appeared as the lead op-ed in The Hindu yesterday (20th March). We argue that the Supreme Court's order restraining the Italian Ambassador and the 'waiver of immunity' argument in the contempt proceedings being considered are without basis in law. The outrage at Italy's actions are undoubtedly justified but the response to it cannot be to sacrifice the commitments we have made to protect the personal safety of diplomatic agents.

Shifting the focus to the legal proceedings against the Italian Ambassador can also be seen as a convenient way out for the Government. Rather than putting pressure on the Government to take the difficult political and diplomatic decisions to address the marines issue, the focus has been successfully shifted to what the Supreme Court would do. Of course, what cannot be ignored in this entire situation is the controversy surrounding the Government of India's $750 million deal to buy helicopters from the subsidiary of Finmeccanica, Italy's largest industrial group as far as high technology is concerned.

For an opposite view on the immunity of the Italian Ambassador, please read Arghya Sengupta's article 'Lawful responses to unlawful actions' that appeared in The Hindu on 16th March.

Wednesday, March 20, 2013

Advocates-on-record: Name on rent - II

Guest Post by Prashant Narang*

This year, sixty six candidates cleared the AoR exam and recently on 20.03.2013 those successful candidates were designated as AoR by the Judge-in-Chamber. In my previous post on AoR system, I had argued that the AoR system creates an unnecessary cost of an intermediary who lends his name to another lawyer to file and plead on his behalf without necessarily adding any value to the process overall. However, the proponents of this system contend that the system is important for the purposes of quality and geographical proximity of AoRs to the Supreme Court.

The AoR examination requires a number of criteria for registration: geographical proximity is one of them– an office within the radius of sixteen kilometers from the Supreme Court; and minimum professional experience of 4+1 years, i.e. four years of enrollment followed by one year of training with an AoR. 

Firstly, geographical proximity is not necessarily relevant. It is true that the Supreme Court registry does not work like the High Courts - specifically the High Court of Delhi where you are given a specific date instead of “list it after two/ four/ six weeks”, an ambiguous direction which is almost meaningless – the cases usually then come up after months and sometimes after a couple of years.  It is also true that the matter may ‘reach’ any time. The immediate question is: why is the Supreme Court not more certain and precise like the High Court of Delhi? It should be. That apart, the non-AoR advocate who engages an AoR is the real person who handles the case, interacts with the client and briefs the senior counsel. He may not be in proximity of the Court and yet his presence or absence matters more for all purposes whereas AoR’s presence is irrelevant but for the rule. He can be communicated directly about the details of the matter by way of a better technology. There is nothing that stops the registry to develop a mobile app to update the lawyers on their cases, to send the respective ‘office reports’ and daily cause-lists etc. So, should such administrative or technological lag be covered up by creating geographical barriers for lawyers to practice in the Supreme Court? The absence of (or an inefficient) online communication system in the Apex Court of the nation should not be a ground of breeding an anti-competitive practice. There is no parallel probably anywhere else in the world defining an entry barrier for litigation practice in the Apex Court based on 16 km distance criteria.  

Secondly, as far as quality is concerned, there is already a double-tier qualitative check in place in form of entry requirements by the Bar Council of India. The law colleges are accredited by the Bar Council of India and secondly, there is an All India Bar Exam post-law school degree. Please note that the Supreme Court Rules are taught in LL.B. as a separate subject in the final semester in many Universities. The question is: Are these existing qualitative entry barriers not enough for the Supreme Court practice? Why another check?

Of course, the proponents may argue the existing qualitative barriers are not enough. Then, should the other Courts too not have a similar system in place? Two, why should those existing checks not be improvised and made efficient so that all Courts can have the privilege of better quality of lawyers? Third, arguendo the Supreme Court requires better quality advocates than the high courts and other lower Courts, it can be achieved by independent accreditation or certification by a private agency instead of licensure. 

Undoubtedly, this system is unnecessary and rather has negative unintended consequences for litigants and first generation young lawyers. 

(* The author is an advocate based in New Delhi.)

Monday, March 11, 2013

Case Hearing: AP Civil Liberties Committee v AP

The Supreme Court is scheduled to hear an appeal from the Andhra Pradesh High Court's judgment in the AP Civil Liberties Committee v the Government of Andhra Pradesh tomorrow (the 12th of March 2013). The case deals with encounter deaths and HC held that:

Every time a person is killed by a police officer,
1. If a complaint is made, an FIR must be registered. Judicial precedence is clear that police do not have a discretion not to register an FIR. The FIR's sincerity, veracity etc cannot be determined at the registration stage. Also, it is not necessary for the FIR to name the officers involved.
2. Once an FIR is registered, an investigation must be launched. The investigation may conclude that (a) no killing took place, or (b) that the killing was excused as an exercise of one's right to private defense, or (c) that the killing was not excused and therefore illegal.
3. The Judicial Magistrate is not bound to agree with an investigation report which concludes that the killing took place in course of the exercise of the right to private defense. The judicial discretion must be exercised independently and if the Magistrate thinks that this is not conclusively proven, she can take cognizance under section 190 fo the Code of Criminal Procedure.

This blog has discussed the case in detail previously at this link.

One hopes that the Supreme Court will uphold the very sensible judgment of the AP High Court that an unnatural death needs to be investigated. Indeed, several other jurisdictions, including those with a far more conservative tradition of judicial interpretation of constitutional rights, have held that the right to life includes a duty on the state to investigate unnatural deaths (see the European Court of Human Rights jurisprudence on the duty to investigate, for example). 

Overturning the AP ruling will be against the core values of liberal democracy.

UPDATE:  The case has been referred to a larger Bench. The latest order is here.

Beyond Juristocracy: The Chief Justice of Nepal

The last two decades have seen Supreme Court in South Asia playing an extremely prominent role in everyday governance. The Chief Justices of Pakistan and Sri Lanka have emerged as figureheads of the opposition to the government. However, the action so far has largely been from the benches.

Recent developments in Nepal push us to reconsider the pattern. This week faced with a constitutional deadlock, the four major Nepali political parties invited Chief Justice Khim Raj Regmi to take over the government as interim Prime Minister and to conduct the next set of elections. Chief Justice Regmi after consideration has accepted the offer. There are some precedents for this in South Asia. In Bangladesh, Chief Justice Shahabuddin Ahmed had held the office of the Prime Minister for three months as he oversaw the transition from the dictatorship of Huseein Mohammad Ershad. The new Bhutanese constitution also provides for the possibility of the Chief Justice taking over as interim premier. However, the constitution of Nepal expressly provides that judges of the Supreme Court cannot hold political office.

While political parties and the press have largely been supportive of the Chief Justice, the Nepal Bar Association has been outraged and protested that this compromises the independence of the judiciary.Several writ petitions have challenging this appointment arguing that it vitiates against the separation of powers. Semanta Dahal, a constitutional lawyer in Nepal presents the case for the opposition here.

Narendra Modi's right to free speech

My piece in The Indian Express a couple of days ago on controversy over Modi speaking (then not) at Wharton. I argue that those against Modi speaking misunderstood the role of a university. 

Sunday, March 10, 2013

One World

Guest Post by Kalyani Ramnath
Manu Bhagavan’s ‘The Peacemakers: India and the Quest for One World’ provides a compelling account of India’s engagement with international institutions from the 1940s to the 1960s. The title of Wendell Wilkie’s book which Nehru encountered in the early 1940s is used as a means of organising the ideas that were propounded by several political notables during the last days of the British empire in India. It is, according to the narrative in this book, not only the rallying point for India’s international affairs programme, but also for the debates in the Constituent Assembly. One World is about a global community that is free from exploitation and war, and one that recognises and celebrates differences among nations. Set against the backdrop of the World Wars, the Indian political elite, especially Nehru and Gandhi, argued that colonialism in India was incompatible with the global outrage against fascism. One World placed human rights in direct opposition to fascism and colonialism. The narrative ends soon after the Sino-Indian war in 1962, against a world that had not fully grasped the import of Nehru’s “cooperate or perish”. The pace of the writing reflects the urgency of these times – the clamour for an international consensus on universality of human rights, the realpolitik between US and Britain on the colonialism question and Lord Mountbatten’s fasttracking of the British departure from India. The last man standing, in this version of the early years of the Indian republic, is Vijayalakshmi Pandit.

Bhagavan’s incredibly impressive work, which extended over twenty archives all over the world, shows not just what ideas about human dignity migrated, but answers important questions about how and why this “migration” happened. There is admittedly a Nehru-Gandhi narrative at the heart of the book, but the book focuses equally on Vijayalakshmi Pandit, Hansa Mehta and to a lesser extent Kamaladevi Chattopadhyay as key players. They are portrayed as working towards a Nehruvian vision, but with their distinctive clarity of purpose and a consistent negotiation strategy - whether it was Pandit at the United Nations General Assembly or Mehta at the Human Rights Commission. Further, it illuminates Indian constitutionmaking as much as it provides the historical context for international affairs. Even as Nehru spoke in the Constituent Assembly about the need to treat nationals and non-nationals equally, he drew upon India’s successful experience gaining international support for the Ghetto Laws in South Africa. Hansa Mehta’s experience with the Human Rights Commission that drafted the Universal Declaration of Human Rights might have been brought to bear, one may conjecture, on the Fundamental Rights Sub Committee that was entrusted with drafting the Fundamental Rights. Not unlike international developments, the Fundamental Rights Sub Committee votes to split up internationally accepted human rights into the Fundamental Rights and the Directive Principles of State Policy. The former would be enforceable in courts, the latter would not be. Both KM Munshi and Hansa Mehta were members of the Sub Committee and supporters of One World. However, the transcript of the Debates show that it is not merely Nehru who is the strongest proponent of the Directive Principles, but Ambedkar; it is not merely Nehru who suggests that the Directive Principles achieve primacy over Fundamental Rights, but BN Rau.

In addition to providing a fascinating account of the multiple registers on which law and politics engage, Bhagavan provides a historical context for the emergence of several grand debates around the notion of human rights. For instance, if national sovereignty were used to cloak human rights violations, colonialism and apartheid would be the unhappy fallout. Again, although legalisation of notions of human dignity had taken place, through international covenants and national constitutions, it left the question of their legal enforceability unanswered. Both Nehruvian and Gandhian resonances with the ideas in One World rethought the distinction between rights and obligations.

Worth a close read.

Monday, March 04, 2013

Rethinking the Collegium Model

Guest Post by Smaran Shetty, NUJS.

The collective legacy of S.P. Gupta v. President of India  (first judge’s case), Supreme Court Advocates on Record Association v. Union of India  (second judge’s case) and Special Reference 1 of 1998  (third judge’s case) is that the judiciary retains primacy in all matters of judicial appointment to the higher judiciary. This primacy is evidenced by the fact that the Chief Justice of India (in consultation with the five senior most judges) has the final say in the appointment of judges to the Supreme Court, despite expressed reservations by the government. Such disagreements are not uncommon and was recently witnessed in the elevation of three judges to the Supreme Court (see here and here ) Unsurprisingly, this model of appointment has received criticism for placing disproportionate power in the hands of judges in deciding appointments - a matter that should ostensibly include a more broad based system of soliciting consensus. The collegium system has also been questioned on account of it’s secretive manner of functioning, as its meetings and inner deliberations are rarely known, either to other members of the judiciary or the public at large.

Practitioners before the Supreme Court have raised serious questions about the efficacy of the collegium system, and whether a judge centric model of appointment is constitutionally warranted and justifiable. For instance, Fali S. Nariman in his autobiography candidly characterizes the second judge’s case as “A case I won – But which I would prefer to have lost” (Before Memory Fades, Fali S. Nariman, Chapter 16, p.387 – 406). He explains that the second judge’s case in an attempt to restore the position before the first judge’s case, went far beyond it, and virtually re-wrote Article 124. In doing so, the second judge’s case neglected any institutional measure that could have lent accountability and openness to the envisaged collegium model. He further adds that the third judge’s case by prescribing “effective consultation” did little for remedying the lack of any institutional check, and further entrenched judicial primary in the appointment procedure. Similarly, Raju Ramachandran in a recent book review   has pointed out that the opaqueness of the collegium system can be disastrous under an autocratic Chief Justice, giving rise to name mongering by powerful senior judges during the deliberation process.
Former judges of the Supreme Court have also been critical of the collegium model. Justice Ruma Pal has been famously quoted as saying that the collegium system of appointment is “one of the best kept secrets in the country” (see here, here and here). Recently Justice Katju also voiced his concerns over the collegium model and provided an account of the manner in which he made judicial appointments to the Andhra Pradesh High Court, while he served as its Chief Justice. Whether or not the procedure of appointment as advocated by Justice Katju is advisable, or even whether it will gain traction with other Chief Justices, is a matter still to be seen.

Given these varied and consistent concerns, the Supreme Court has begun to respond with some recent decisions. In 2010, a PIL was filed by a Rajasthan based trust that sought a complete review of the collegium model  of appointment. A two-judge bench comprising Justice Deepak Verman and Justice Chauhan heard the PIL. The petition was admitted  and was subsequently ordered to be placed before the Chief Justice to constitute a bench of appropriate strength. Subsequently, a three judge bench comprising of Chief Justice Kabir issued notice to the concerned parties to aid in the resolution of the matter (see here and here). Unfortunately the petition came to be dismissed on January 8, 2013, on technical grounds. The court held that the petitioner-trust lacked standing to raise the constitutional questions involved in the instant matter (see here and here).
Similarly, in 2010 a two judge bench comprising of Justice Sundershan Reddy and Justice Nijjar  referred a series of questions involving the functioning of the collegium to the Chief Justice. The primary question involved in this reference is whether the deliberations of the collegium and file notings of the Chief Justice are subject to a Right to Information application. In making this reference, the judges also note that these issues involve a balancing of several interests:  the credibility of the appointment process, the right of judges to speak frankly during deliberations and the right of citizens to be informed about constitutional appointments.

These two cases clearly signal a growing concern that the higher judiciary must confront and hopefully successfully resolve. Considering the realities of the functioning of the political executive and our intuitive suspicion towards its decision making process, it is difficult to foresee the collegium system being completely disbanded. This is supported by the decision of Supreme Court to finally dismiss the  petition that sought a complete review of the collegium model. But that response captures only one part of the current debate. The concern over the collegium system does not extend only to the people making judicial appointments, but more so the manner and circumstances in which such appointments are made.

Given this concern, one would be inclined to argue that reforming and fine-tuning the manner in which the collegium operates, is more instructive, as opposed to challenging the collegium model itself – both in terms of a litigation strategy and in terms of addressing the enumerated constitutional concerns. These reforms can be affected through small yet significant institutional arrangement. For instance setting up a permanent office for judicial nominations within the Supreme Court, compiling a publicly available database of recommendations and releasing records of collegium meetings might prove to address some of the perils of the current system. Perhaps for these reasons, it will be worth watching how the court finally determines transparency issues concerning the collegium in respect of the pending PIL.