Debating Legislation

This blog has debated pending Bills on many occasions. A recent post on the Accountability Initiative blog discusses the importance of pre-legislative scrutiny and a major recent civil society effort in Delhi to address this issue. The post covers the major themes discussed at the meeting, and the various ways in which we can public debate and limit information asymmetry around Bills pending before Parliament.

Of Daughters and Debtors

Justice Gyan Sudha Misra's declaration of assets is available here. The Supreme Court judge has been criticized for listing "Two daughters to be married" under the heading "any other liabilities".

Binayak Sen's Kafkaesque travails continue

On Friday, December 24, 2010, a trial court in Chhattisgarh found Dr. Binayak Sen and two others guilty of criminal conspiracy to commit sedition under Section 124(a) read with Section 20 (b) of the Indian Penal Code, and sentenced them to life imprisonment. The trial judge, B.P. Verma, also found the three men guilty of charges under other emergency laws in his judgment (in Hindi, available here). The judgment has been met with outrage, and several newspapers and public intellectuals have offered their take on the deficiencies of its reasoning. (Several of these are available on the excellent and regularly updated website of the Free Binayak Sen Campaign).

We have covered the twists and turns of Dr. Sen's travails intermittently (some of these posts are available here), but it is clear that the case merits sustained and committed attention.

Here are links to some particularly insightful early critiques and analyses:

1) Jyoti Punjwani, a journalist and rights activist, has a piece titled "The Trial of Binayak Sen" in the latest issue of the EPW (Dec 25, 2010). Written before the trial court's judgment came out, the article details "discrepancies and contradictions on material points" in the evidence offered by the prosecution in the trial. (Here is another link to this excellent article that will remain in the public domain).

2) Ilinia Sen, Sudha Bharadwaj and Kavita Srinivas offer a detailed analysis of the content and logic of the trial court's judgment, focusing on its most acute problems.

3) Shiv Vishwanath's open letter to the Prime Minister is one of several campaigns that seek to highlight the extreme injustices involved in the case. (Hat tip: Kafila, which is closely following reactions to the case).

4) And finally, Dr. Binayak Sen's 'Final Statement' to the trial court, where he makes a compelling case in his own words.

Some commentators have expressed hope that the Indian higher judiciary's record on human rights cases will make this an easy case to be overturned on appeal. However, as close followers of the Indian higher judiciary's record on emergency powers know, that record is quite a mixed one, making this far from an easy case. In cases like these, sustained civic action can remind the courts of the importance of their role as guardians of the constitution.

Consilience 2011

The Law and Technology Committee (elTek) of the National Law School of India University, Bangalore is hosting ‘Consilience’, a conference where contemporary issues of critical relevance in the field of law and technology are addressed. Past editions of the conference have engaged with a vast spectrum of cutting edge issues such as “Legal Aspects of Business Process Outsourcing”, “Biotechnology and the Law” and “Free and Open Source Software" drawing in on the rich experience of luminaries like Mr. Montek Singh Ahluwalia (Deputy Chairman, Planning Commission of India), Mr. R. Ramraj (MD and CEO, Sify Technologies Ltd.), Mr. Richard Stallman (Founder – GNU Project). Last year's conference, the theme for which was "Internet Intermediary Liability in India", has been hailed to have made a rich contribution to the evaluation of status quo and the future trajectory of intermediary liability in India by bringing in diverse perspectives from the academia, the industry and other important stakeholders. Some of the keynote speakers at the Conference were Ms. Wendy Seltzer (Founder, Chilling Effects Clearhouse and Fellow, Berkman Centre for Internet and Society), Mr. Gavin Sutter (Lecturer, University of London ) and Mr. Sunil Abraham (Executive Director, Centre for Internet and Society, Bangalore). Details and conference videos from last year's conference are available at http://www.consilience.in/

The 2011 edition of Consilience will focus on the theme of privacy and how it affects individuals and organisations. Consilience 2011 thus seeks to explore the interface between privacy and technology, the effect technology has on our understanding of privacy, and how technology shapes the contours of privacy and is in return shaped by privacy. Specific dimensions that the conference will engage with include privacy in the context of e-commerce transactions, social networking sites, upcoming gadgets, its equation with the State (with a special focus on the upcoming Unique Identity number project). Updates regarding the schedule of the conference will be posted on http://www.consilience.in/

Rajya Sabha Committee Report on Torture Bill

The Rajya Sabha Select Committee on the Torture Bill has recommended significant amendments to the Prevention of Torture Bill passed by the Lok Sabha. These recommendations include widening the definitions of 'torture' and of 'public servant', increasing the limitation period for filing a complaint to up to 2 years, provision for judicial review of a governmental decision to refuse sanction to prosecute, and a provision to clarify that torture shall not be justifiable even in the context of war, threat of war, or on orders of a superior. The full report is available here.

[For past coverage of the Bill on this blog, please click here.]

Idols in Law

The current issue of the Economic and Political Weekly carries a special section of articles on the Ayodhya judgment. Anupam Gupta, one of the counsel who appeared before the Lieberhan Commission, does a close reading of the suits to suggest that the decision stands on very flimsy legal grounds. Gautam Patel reviews the evidence to suggest that the judgment is politically expedient at the cost of judicial integrity. Historian Kumkum Roy makes a thoughtful argument about how questions of faith can be addressed through a legal discourse, and more importantly, how a person of faith (in her case a practising Hindu) should respond to the court's treatment of Hinduism. To this end, she draws on a survey she carried out amongst women about what Ram means to them. P.A Sebastian makes a fairly rehearsed argument that this is the most recent in a series of judgements by Indian courts undermining secularism. Historians Supriya Verma and Jaya Menon who were observers during the ASI excavation point out the flaws in the report noting many irregularities and outdated methods they observed. Verma and Menon focus on the perception of archeology as an exact science and the role played by the ASI in fostering the impression. They attribute the reluctance of archeologists to critique the ASI, to its complete monopoly over heritage management. "Any archaeologist in India or from outside who wants to explore or excavate sites has to obtain a licence from the ASI. So no field archaeologist is willing to speak out against it or its outdated methods." Yet, instead of being the expert of experts that the Allahabad High Court declared it to be they note "academically, the work that archaeologists of the ASI have produced has little standing within the social sciences in India and abroad."

Diaspora, Development, and Democracy: The Domestic Impact of International Migration from India

Devesh Kapur, who directs the Centre for the Advanced Study of India at the University of Pennsylvania, has just published a new book: Diaspora, Development, and Democracy: The Domestic Impact of International Migration from India (Princeton University Press / Oxford University Press). A recent review of the book in the Indian Express is available here.

The Centre for Policy Research (CPR) and Oxford University Press are organizing the book launch in India on Thu 23 December at 3:00 PM, Lecture Hall, India International Centre (IIC) Annexe, 40 Max Mueller Marg, New Delhi. A panel discussion will feature Dr. Pratap Bhanu Mehta (President and Chief Executive, CPR), Shri Montek Singh Ahluwalia (Deputy Chairman, Planning Commission), Shri Jairam Ramesh (Minister of State - Independent Charge, Environment and Forests), and Dr. Sanjaya Baru (Editor, Business Standard). All interested should feel free to attend.

From the blurb:

What happens to a country when its skilled workers emigrate? The first book to examine the complex economic, social, and political effects of emigration on India, Diaspora, Development, and Democracy provides a conceptual framework for understanding the repercussions of international migration on migrants' home countries.

Devesh Kapur finds that migration has influenced India far beyond a simplistic "brain drain"--migration's impact greatly depends on who leaves and why. The book offers new methods and empirical evidence for measuring these traits and shows how data about these characteristics link to specific outcomes. For instance, the positive selection of Indian migrants through education has strengthened India's democracy by creating a political space for previously excluded social groups. Because older Indian elites have an exit option, they are less likely to resist the loss of political power at home. Education and training abroad has played an important role in facilitating the flow of expertise to India, integrating the country into the world economy, positively shaping how India is perceived, and changing traditional conceptions of citizenship. The book highlights a paradox--while international migration is a cause and consequence of globalization, its effects on countries of origin depend largely on factors internal to those countries.

A rich portrait of the Indian migrant community, Diaspora, Development, and Democracy explores the complex political and economic consequences of migration for the countries migrants leave behind.

US Patent Influence and the Independence of our Tribunals

A recent story in the Mint exposes a questionable letter from the US Commerce Secretary, Gary Locke to his Indian counterpart, Anand Sharma, the Hon'ble Minister of Commerce. I extract the relevant portions of this letter as produced in the Mint piece:

“Dear Minister, I look forward to meeting with you during my upcoming trip to India with President Obama. As we advance and strengthen the US-India bilateral commercial relationship with this visit, India should fully consider the requisite business climate for spurring innovation, especially with respect to intellectual property protection,” begins the letter, dated 2 November. “Therefore, I am particularly concerned that the US biopharmaceutical firm Gilead’s HIV/AIDS drug Viread receives fair consideration.”

For those interested, I've detailed out the story and its implications on SpicyIP. In particular, readers of this blog may be interested in aspects of this story dealing with the IPAB, a specialised IP tribunal and how its very structure violates constitutional canons. I reproduce relevant portions below:

"In this letter, dispatched just days prior to Obama's India visit, the US Secretary attempts, in his official capacity, to advance the corporate commercial (patent) interests of Gilead, a multinational drug corporation, in which Donald Rumsfield (ex Secretary of Defence) was rumoured to have held shares during the height of the Tamiflu controversy.

This letter deals with Gilead's pending patent appeal with the IPAB, where it challenged the rejection of its patent covering Viread, an HIV drug, by the Indian patent office. Secretary Locke asks that Gilead's case receive "fair" consideration.

In all fairness, the Secretary only asked that the case receive "fair" consideration. However, as DG Shah rightly notes:

"I doubt any other country, including the US, would entertain if the government of India takes up such corporate issues with their judiciary mechanism. Ideally, our government should have discarded the US plea immediately, saying the patent tribunal here is strong enough to decide such matters independently,” said D.G. Shah, secretary general of IPA."

Further, the fact that this letter was sent to the Minister for Commerce (who controls the patent office) raises some problematic issues with the "independence" of the Intellectual Property Appellate Board (IPAB), a specialised IP tribunal tasked with dealing with certain kinds of IP disputes.

As some of you may know, the IPAB effectively replaced the functions of the High Court, in so far as a large range of IP disputes were concerned. One would have naturally expected the IPAB to be structured as close as possible to an independent judiciary. Unfortunately, this was not to be ...and those that were responsible for drafting IPAB rules and pre-requisites for appointment ensured that they themselves and their brethren (Indian Legal Service [ILS] officers) got selected to these plum posts. Little wonder then that the IPAB is seen as just another wing of the "executive". And not as an independent tribunal functioning as an organ of the "judiciary".

Paradoxically enough, our own judiciary (Supreme Court and High Court judges) has been kept out of the process for selecting "judicial" members at the IPAB....this prerogative lies solely with the government (the executive). More problematically, while Article 217 of our Constitution recognises advocates with 10 years of practice as being eligible to be appointed as High Court judges, the IPAB does not consider them fit enough to be appointed as judicial members! Since the inception of the IPAB, only ILS (Indian Legal Service) officers with next to no IP experience have been appointed as "judicial" members, with some of them even being elevated to the exalted status of Chairman and Vice-Chairman.

All of this results in a flagrant violation of norms laid down in the NCLT judgment, where the Supremes came down harshly on tribunals that, far from being set up as "independent" organs capable of rendering impartial justice, ended up being stooges of the Executive.

Given this background, Secretary Locke may perhaps be forgiven for thinking that our Hon'ble Minister, Anand Sharma has the power to influence the working of the IPAB. In fact, the Mint report itself states that Secretary Locke's letter was forwarded to the DIPP, the executive arm of the government responsible for patent matters.

The Gram Nyayalaya: The New Face of the Judiciary

Guest Post by Vasudha Nagaraj

The Gram Nyayalaya: The New Face of the Judiciary

The Gram Nyayalayas Act passed in January 2009 proposes to set up a Magistrate’s court at the Mandal level. In a press release issued on the occasion of Gandhi Jayanti (2nd October, 2009), the Centre announced that there shall be 5000 new courts instituted across the country, that it shall spend approximately 1400 crores for this purpose. The same press release added that the setting up of the Gram Nyayalaya is part of drawing a larger road map for judicial reforms. These new courts, it has been explained, is one of the measures to reduce the backlog and pendency in the subordinate courts by 50%. Any discussion of law reform either by the Chief Justice or the Law Minister have touched upon the setting up of these courts primarily in terms of its impact on reduction of pendency of cases in the subordinate courts.

The Gram Nyayalaya is the latest in the reforms in the structure of the Indian judiciary. The state introduced Fast track Courts and Lok Adalats to address the monumental backlog of cases in the judiciary. Family Courts instituted since 1984 also espouses speedy disposal, sensitive approach and relaxation of strict rules of evidence and procedure. The Gram Nyayalaya seems to be a combination of the objectives of several special courts in contrast to the regular emphasis on the adversarial trial.

A Round Table was organised in Hyderabad on 19 September, 2009 with several lawyers practicing in the District Courts to discuss the scope and possibilities of these new courts. The following is a report of the main issues that came up in the discussion.

The Gram Nyayalaya as a different court was proposed by the 114th Law Commission (lawcommissionofindia.nic.in) way back in 1986. The report recommended the concept of the Gram Nyayalaya with two objectives. While addressing the pendency in the subordinate courts was the major objective, the other objective was the introduction of a participatory forum of justice. To make it participatory the Law Commission recommended that the Magistrate be accompanied by two lay persons who shall act as Judges, that the legal training of the Magistrate will be complemented by the knowledge of the lay persons who would bring in the much required socio-economic dimension to adjudication. It was proposed that such a model of adjudication will be best suited for rural litigation. The Law Commission also observed that such a court would be ideally suited for the villages as the nature of disputes coming before such a court would be ‘simple, uncomplicated and easy of solution’ and that such disputes should not be enmeshed in procedural claptrap. The report suggests that such a litigation is expensive both for the state as well as the litigant. However the participatory aspect has been set aside in the current Act and we find the Gram Nyayalaya manned by the regular Judicial First Class Magistrate. Its features are:

It will be a mobile court and will conduct its proceedings in close proximity to the cause of action.

The proceedings will be carried out in the local language.

The court fees for any of the civil claims will not exceed Rs 100 irrespective of the worth of the property involved.

In criminal cases the proceedings will be of a summary nature.

In civil cases, in execution proceedings, the court will not be bound by the Code of Civil Procedure and will be guided by principles of natural justice.

The Nyayalaya may accept documents that may not be strictly admissible under the Indian Evidence Act.

All the orders (except consent orders) of the Nyayalaya can be appealed in the District Court and no further.

In criminal cases the accused can petition the court for plea bargaining.

The Magistrate presiding in this court will be called a Nyayadhikari. The Nyayadhikari, in addition to his regular adjudicative functions, has to assist, persuade and conciliate the parties in arriving at a settlement.

Issues in the Round Table

a) Is village litigation simple and amenable to fast solutions? For one foot of land people have initiated cumbersome litigations. The proximity of these courts may lead to more litigation among family members or among neighbors too. What could be resolved with the help of local and customary mechanisms may end up being trapped in these courts. In a way these courts, with its judges and conciliators, will invalidate existing mechanisms of managing disputes in the villages.

b) In regard to court fees, the new Act states that all suits irrespective of the value of property shall be registered with 100 rupees. While standardizing court fees enables access to the poorer litigant, it may also lead to excessive litigation.

c) Relaxing rules of evidence: In these new courts documents will be admitted even if they are not considered relevant by the law of evidence. How can a relaxation of this kind be used by parties to a dispute who are drawn from unequal powers and resources. A more powerful litigant may be able to play the rules of documentary evidence much more to his advantage.

d) Flexibility about procedures and evidence also depends on the Judge presiding in these courts. It is common knowledge that some judges are extremely rule bound while some are not. Discretion of the judge can also turn arbitrary. The discretionary powers of the judge has tricky implications.

e) All proceedings in criminal cases have been made into a summary one. Two important aspects of a summary trial are that charges are not framed and only the gist of evidence is recorded. What could be gained if a full recording of the evidence is given up in favor of the summary recording if not lip service to the question of speedy disposal. By making it a summary trial, one is giving more room for the judge to exercise his discretion.

f) Plea Bargaining and Conciliation: Apprehension was expressed about the provision of these two aspects in criminal and civil cases. It was pointed that cases filed by workers under the Minimum Wages Act or women under Domestic Violence Act, plea bargaining would wield lot of pressure on the victims to close the case, which may be detrimental to the interests of the victims.

g) Much discussion centred around how these courts were being instituted to regulate the large number of claims arising from the land and water tax violations. It was observed that the model of taxation is changing in the rural areas with newer taxes being introduced.

h) On a more hopeful note, some lawyers expressed that the Gram Nyayalayas would be helpful for those people living in remote Mandals of a district. They gave instances of how the rural litigant traveled long distances and even slept overnight in the court complex to attend his case the following day. They also contradicted the general opinion that such courts would invalidate the existing local mechanisms of solving disputes especially in a context where much of the local dispute redressal has been made over into the hands of the goondas, party leaders and police stations. Despite being local and customary, they pointed out, these local forums have become expensive and time consuming for the common man.

i) On the proximity of the court to the cause of action, it was felt that this give an opportunity for the litigant to mobilize her community and impact the procedures in the court. The presence of the litigant’s community in the court would provide the much required show of strength as well as enabling negotiations.

At the end of the Round Table there was not much consensus about how these new courts would function. There was suspicion that these courts are being set-up with ulterior motives of ‘managing litigation’ and with the purpose of reducing the pendency of cases. A recurring question was whether speedy disposal meant speedy justice for the poorer litigant. A court that is closer to the rural litigant and a speedy disposal are definitely laudable objective of the legal system. However, an emphasis on speedy disposal alone raises doubts if these are moves are being made to manage the arrears of the cases or to enable better access to the litigant-people. Surely long pendency is not the only issue which affects a litigant’s expectations in the courts. One was also unclear about what to draw from the experiences of the other special courts such as Fast Track courts or the Lok Adalats. Clearly, family courts, despite its emphasis on conciliation and relaxed procedures, ended up functioning like regular civil courts. Considering the disappointing practices of special courts and their functioning, the question remained, whether the Gram Nyayalaya be able to establish a new forum for litigation.

New Slate of Amendments

As parliament stumbles into the Winter Session, one should note that there are five constitutional amendments on its legislative agenda. The most prominent of course is the Women's Reservation Amendment (108th) which proposes to reserve 33% of seats in the Lok Sabha and state legislatures (but curiously not in the Rajya Sabha which is perhaps why they passed it). The 110th and 112th Amendments seek to increase women's reservation in village panchayats and town municipalities to 50% (some states like Bihar have already implemented it).

The 111th Amendment Bill seeks to create a new Directive Principle of State Policy and provide a mechanism for implementing the same. The proposed Art 43 B of Constitution shall ask to state to endeavor to " promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies." It recognizes that coorperative societies in India are economically important but are often not transparent and democratic. Interestingly coooperative socities come under Entry 32 of the State List, and the central legislation for the same is being justified as a demand raised during "consultations with the State Governments
have been held at several occasions and in the conferences of State Co-operative Ministers."

The amendment seeks to empower the Parliament in respect of multi-State co-operative societies and the State Legislatures in case of other co-operative societies to make appropriate law. These laws are expected to have provisions for incorporation, regulation and winding up of co-operative societies based on the principles of democratic member-control, member-economic participation and autonomous functioning. It also specifies term limits for directors, strict enforcement of meetings of the boards, independent audits, subjects cooperative societies to the right to information, requires them to submit periodic reports and accounts to the state governments and provides for reservation of SC/ST/Women on the board.


The 113th Amendment seeks to change Oriya in the list of recognized languages to Odia.

The plethora of amendments makes it pernitent to ask whether any of the above changes (perhaps with the exception of the spelling of Odia) were required to be done through constitutional amendment. Would an ordinary law that increased reservation in local bodies for women or a national legislation regulating cooperatives withstand constitutional scrutiny?

Seminar: Special Issue, 60 yrs of the Constitution

The current issue of Seminar, available here, is devoted to celebrating sixty years of the Indian Constitution. Contributors include Pratap Bhanu Mehta, Uday S. Mehta, Upendra Baxi, Sudhir Krishnaswamy, among others. Several members of this blog - Vinay Sitapati, Rohit De, Vikram Raghavan, and myself - have also contributed to the issue. I hope to provide more detailed reflections on some of the contributions soon.

Why POSCO is important?

A few weeks ago, Nick posed a question on this blog as to what is the most pressing legal issue today. He stated that in his experience, Indians view the state’s obligation to lift them out of poverty as “the core promise of the state”. Given that promise, Nick argued that today,

“the biggest legal challenge in India today is not Ayodhya, or the constitutionality of reservations, or POSCO, or NAZ; even though these are all critical to how India's future will be shaped and in some cases threaten to potentially tear the country apart. The largest challenge is to close the gap between what the law says and what is implemented."

The rest of Nick’s post focused on improving implementation mechanisms and exploring administrative law mechanisms to ensure greater implementation of laws in Indian society. I wholeheartedly endorse Nick’s argument about the necessity to eliminate corruption, understood in its simplest form as the sort of sordid saga that has been playing out in the Telecom ministry and the Congress government of late, which has permeated through the length and breadth of the Indian polity. But certainly when we speak about the gap between law and implementation, we cannot assume the neutrality of “law”. Some laws should be implemented; others like the erstwhile S.377 criminalisation of sodomy or restrictions on adoption of children by married women should not.

More importantly however, I would like to argue that POSCO and other projects that involve issues of displacement and deprivation are fundamental challenges for the Indian polity. Without denying the importance of either the Ayodhya issue or the Naz judgment (particularly for minority groups like Muslims and homosexuals respectively), I submit that the issues relating to POSCO (and other projects like Vedanta in Orissa, the Adani Port and Special Economic Zone in Gujarat, and Jindal Steel and Power Plant in Chhatisgarh) are crucial to a vast majority of the Indian population. Not only are these issues significant for the poverty upliftment of 37.2% of India’s population or 400 million people that live below the poverty line, they are crucial also for the challenge to India’s democracy by the increasingly violent Naxalite struggle in India. The Naxalite movement involves a complex set of issues including lack of development, exacerbation of inequalities and distrust in state power bred by arbitrariness and corruption. At its heart however, the movement is about struggle over land and resources and related issues of displacement and deprivation. Today, 40% of India’s geographical area is engulfed by the Naxalite struggle, up from 33% a few years ago.

Each of the abovementioned projects, i.e. POSCO, Vedanta, Adani port (and there are thousands of others) involve displacement of masses of people, many of whom are completely dependent on common property resources, including the forests, grazing land and the seas. Many of the displaced peoples are tribals (like the Dongri kondhs in the Niyamgiri hills in Orissa), or minority groups (like Muslim fishermen with a 14% literacy rate in Gujarat). In each case, people are being displaced from land that for a long time (ranging from half a century to several centuries) has been used by them to support their way of life. In fact, so long have these people lived on this land that they should have recognized customary and easementary rights over it. In reality, however, the government of India fails to recognize even their existence on this land let alone any legal claims they might have to the same. In each of these cases, displacement means destruction of a way of life and the only means of livelihood available to the group because of the government’s failure to provide them with education or any other marketable skills that would enable them to adapt to a changing economic environment. The result is sheer and abject poverty of the kind that these people have not known so far despite their humble conditions. In each of these cases, the projects impose large scale environmental degradation, including cutting down of forests, uncontrolled mining operations, reclamation of the seas and extinction of animal and marine life.

People interested in poverty alleviation, ostensibly the NAC (although the extremely watered down version of the Food Security Act and the failure to ensure a universal PDS clearly belie that impression) need to pay attention to the simultaneous processes of immiseration that the UPA government has sanctified and presided on over the past 7 years. Mr. Jairam Ramesh’s efforts to give some teeth to the environmental laws in this country are highly laudable in this regard (given that the Ministry of Environment and Forests has rubberstamped every sort of project in the past in the most non transparent and corrupt matter without regard for the human or environmental consequences of the same) but he faces opposition from half a dozen ministers in his own cabinet and a neoliberal elite who think of development only in terms of growth rates and GDP. Consequently, his achievements will likely be limited. What is shocking however is the failure of print media to sufficiently highlight these contradictions in India’s development story and that of scholars and intellectuals to engage with these issues in a comprehensive and sustained manner. POSCO and Vedanta need to be understood not merely as involving problems of violation of environmental laws and corruption issues. They have to be understood fundamentally as posing serious ethical questions about the problems of redistribution and resource allocation in Indian society. There are ample lessons from history on how to better manage these fundamental tensions and contradictions within the process of economic development, mostly on what not to do. But to take advantage of these lessons, we first need to be mindful of the nature and magnitude of the problems we are facing.

Legal Practitioners Bill

The Law Ministry has invited suggestions on the draft Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interests of Clients and Promoting the Rule of Law) Bill 2010 (thanks to the reader who pointed it out to me). Some provisions are highlighted below, with preliminary comments.

Professional Principles
Clause 2(f) defines “Professional Principles” to include:
(i) that the Legal Professionals should act with independence and integrity;
(ii) that the Legal Professionals should maintain proper standards of work;
(iii) that the Legal Professionals should act in the best interest of their clients;
(iv) that the Legal Professionals who are authorised to appear before a court or tribunal, by virtue of being such authorisation should comply with their duty to the court / tribunal to act with independence in the interest of justice;
(v) that the affairs of clients should be kept confidential.

What appears to be missing is an explicit mention of the lawyer's responsibility to be present at a scheduled court hearings.

Regulatory Objectives:
The Bill defines its regulatory objectives thus:
(a)protecting and promoting the public interest;
(b)supporting the constitutional principle of the rule of law;
(c)improving access to justice;
(d)protecting and promoting the interests of the clients of the legal practitioners;
(e)promoting healthy competition amongst the legal practitioners for improving the quality of service;
(f)encouraging an independent, strong, diverse and effective legal profession with ethical obligations and with a strong sense of duty towards the courts and tribunals where they appear;
(g)creating legal awareness amongst the general public and to make the consumers of the legal profession well informed of their legal rights and duties;
(h)promoting and maintaining adherence to the professional principles.

Regulator
The Bill proposes to establish a Legal Services Board with broad powers to issue guidelines and regulations in pursuance of its regulatory objectives (clause 12). In addition, it is to assist the Bar Council in the maintenance and development of professional and educational standards (clause 13, see also clause 35). [Does legal education need yet another regulator though?] Clauses 29-34 deal with the relationship between the Board and the Bar Council. The Board is supposed to take the advice of a Consumer Panel into account (clauses 18, 19). The Bill also envisages an Ombudsman to receive complaints against lawyers directly.

Legal Aid
The Bill imposes a duty on every legal practitioner to provide free legal services to certain classes to consumers (clause 27).

Conditions of Service for Interns and Juniors?
One important omission in the Bill seems to be the regulation of the often exploitative relationship between a senior and a junior lawyer. (Readers may be interested in the Report on “Entry Barriers to Litigation” based on a survey and a series of interviews held in 2009 and 2010 by Research Foundation for Governance in India (RFGI). A blog post on the Report can be found here.)

Bar Exams?
Would this Bill have been an appropriate vehicle to give a statutory footing to bar exams? Or, does this matter properly belong to the Advocates Act? The legal profession should brace itself for similar disputes concerning the respective jurisdiction of the Bar Council and the proposed Board, despite the Bill's attempts to clarify the matter.

Corruption: Political and Civil Liability

Chavan and Kalmadi have paid the political price for corruption, and Raja may soon follow. Of course, political sanction does not require proof of guilt in a court of law and can therefore be (relatively) swift. Are we seeing the development of a political convention that serious allegations of corruption requires a public servant to resign? If so, does the convention apply only to elected officers or also to unelected bureaucrats and army officers? Is resignation necessary only from a state office or also from offices held in a political party? Should the person herself be accused of corruption, or tolerating/covering corruption of other people should also lead to resignation? Does anyone know of a good research article which throws light on how Indian politics has historically dealt with serious allegations of corruption (allegations involving Rajeev Gandhi, Narasimha Rao, LK Advani, Jayalalitha, George Fernandes, Lalu Yadav, Bangaru Laxman, Reddy brothers come to mind)? I am not so much interested in the moral question of whether those accused of corruption should resign as in whether we have a political convention that requires them to resign or be sacked (although, admittedly, they are connected).

Of course, few would be satisfied if the only price a corrupt person had to pay was political. Apart from the criminal liability under the Prevention of Corruption Act, the corrupt also have a personal civil liability under the tort of misfeasance in public office. In the Three Rivers District Council case, Lord Steyn laid down the ingredients of the tort in British law:
1. The defendant must be a public officer
2. The power was exercised as a public officer
3. The act was motivated by bad faith or malice (mere negligence is not enough, one must show abuse of power)
4. Other ingredients that require proof of damage caused to the plaintiff.

Anil Divan gives a good account of the acceptance and development of this British tort by the Indian Supreme Court in his contribution in Kirpal ed, Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (2000). It appears that the tort was subsumed within the public interest litigation system, and the final requirement of personal damage to the plaintiff was not insisted upon by the Supreme Court. Does anyone know of the development of this tort in India since the article was written? Given that the standard of proof in civil cases is lower than criminal cases, that there is no impunity provision protecting the public servant, that the liability is personal and exemplary damages can be sought, a case of misfeasance in public office may be worth exploring.

NUJS Conference on Constitutional Pluralism

NUJS is collaborating with Eurasia-Pacific Uninet and other partners is organizing an International Conference on "Constitutional Pluralism: New Challenges for Constitutional Theory" on 11th and 12th November, 2010 in Kolkata, India.

This Conference is the third in a series of Asian-European Dialogue on Comparative Constitutional Law that has been organized by Eurasia-Pacific Uninet, a network of more than 130 member institutions in Europe and Asia.
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This Conference shall also be the first in a string of programmes in the University to celebrate the Birth Centenary Year of Dr. Durga Das Basu.

For those interested, more details available at the NUJS website (please check the right hand side of home page for conference announcements).

Sources of Law

I wanted to bring to the attention of our readers, two fascinating online sources on Indian law.

The first is a colonial legal history database that has been set up Mitra Sharafi, Assistant Professor at the University of Wisconsin Law School at Madison. Much of this database has been created by digitizing colonial law reports and archival records. For me the most fascinating resources include; a digitized index of articles published in a number of colonial journals (get the commentary on the Civil Procedure Code before it was enacted), a complete listing of South Asian who studied for the bar at the Inns of Court, and a catalouge of books owned by Wadia Ghandy in 1911 (which gives a great glimpse of what a colonial legal practice would look like).

The second is a more contemporary resource called mylaw.net that has been set up by the team from Rainmaker. Mylaw describes itself "the world's first contextual network for lawyers, and it will feature information (stories and analyses about the legal industry), opportunities (through a jobs and internships platform) and educational programmes for lawyers." Unlike the regular legal website which feature a mix of gossip and law updates, this provides space for regular opinion column of legal issues. Some recent ones include, Kalyani Ramnath's analysis of the Ayodhya judgment and Anubhav Sinha's commentary on how the Bombay High Court has extended admirality to jurisdiction to all High Courts in India. I will also be writing a regular feature on the legal careers of colonial lawyers. The first on Jinnah is already available here (part 1, part 2).

Perhaps their most valuable section consists of detailed interviewswith prominent Indian lawyers on their careers. These include MP Singh, NR Madhava Menon, Iqbal Chagla, Harish Salve and Ashok Desai. Given the practice oriented nature of Indian law, and the absence of any concerted attempt to create a database of oral history, this has the potential of acting as a digital archive of sorts. They also carry more focussed interviews with legal academics, the most recent being with NUS professor and LAOT contributer V.Umakanth on SEBI Regulations.

Judicial Activism and the Bar

Asma Jahangir's election as the first woman President of the the Supreme Court Bar Association of Pakistan today continues to complicate the changing frontiers of judiciary/executive confrontation in Pakistan. The election was hotly contested with Jahangir scoring a narrow victory over Ahmad Awas by 38 votes.

While Asma Jahangir's credentials as a lawyer, human rights campaigner and public intellectual are impeccable, the election was also viewed as the playing out of two different but interlinked political movements. Some have viewed this as a conflict over over liberalism, with her opponent being as close to the religious right factions of the bar. Others, including her opponent have tried to present this as a debate over judicial activism. They have argued that Jahangir is the proxy government candidate, who hope that her victory will help them reign in Chief Justice Chaudhary and the Supreme Court. Jahangir had participated in the protest over the dismissal of Justice Chaudhary but had oft late urged judicial restrain and asked the court and the bar to restore neutrality. Commentators have deplored the politicization of elections to a professional association. This politicization and sustained media interest is not surprising.

Scholars of comparative law are only recently drawing the linkages between the bar and judicial activism. Terry Halliday, Lucien Karpik and Malcom Feeley have emperically established a connection between independent legal profession and the existence of social and political liberalism. They argue that an independent bar, even staffed with the most conservative lawyers, will come to the defence of basic political and civil liberties in a repressive regime.

I have come across very little research on the politics of the Indian bar, and would be grateful if I could be directed to any. I was also curious if the readers, most of whom have greater familiarity with daily legal practice, would agree with this formulation. Do Indian bar associations take up questions of judicial behavior or independence?

Remembering Ismail Farooqi: A Reflection on Bannerjee and Yadav

In their recent incisive post, Bhupender Yadav and Vikramjit Bannerjee raise several questions about the use of colonial precedent and judicial faith which deserve reflection and further discussion.

1. As they establish, there is clearly long precedent from the colonial period of judicial intervention in cases of faith, but given what we know about the role of the colonial state in creating and fostering communal differences, is this good precedent? Scholars have demonstrated that the colonial administration of personal laws for instance was instrumental in the homogenizing of communal identities?

2. Colonial courts relied on religious texts to establish the ground rules of faith. They occasionally admitted oral evidence and evidence of practice, but I am yet to come across a case that use archeological and material evidence. The uses of texts is not unproblematic. Take for example, the Hedaya which emerges as the standard reference on Muslim law in colonial India, and is relied upon by authors as diverse as Fyzee and Paras Diwan. When the colonial courts began to administer
Islamic law in the late eighteenth century, they chose to rely on the al-Marghinani’s al Hedaya,a medieval manual of Hanafi law. Compared to other medieval
Hanafi fiqh texts, the Hedaya did not consistently provide the logic and
reasoning behind the rules of the school. Instead of relying on the original
Arabic text, the courts relied on Charles Hamilton’s English translation of a
Persian translation of the original Arabic version. This four-volume text itself was pared down in the 1870 edition in the interests of cost and utility, and the portions
“more interesting to the antiquarian . . . than useful to the practitioner” were expunged.

What are we then left with? It is this much pared down text that the Supreme Court relies on for instance in Muhammad Hanif Quereshi when it determines that cow slaughter is not an integral part of Islam.




3. The case is presented as a civil suit between faiths, or rather between a faith and a party i.e. the Wakf Board. If this is seen as a civil suit where one party is the Hindu faith, then the question of whether a single party can speak for the faith arises? If this is to be adjudicated as a dispute between faiths, surely the Court needs to implead other parties whose rights and beliefs are effected (those who believe in the two other Ram Jamnasthans in Ayodhya, those who believe that Ram is everywhere and not tied to one place, those who protest the idea of idol worship), and going by other civil suits where third party rights are affected, this would have required newspaper advertisements spelling out the rights and asking parties to step forward?

4. During the debates over the Shahbano judgment several commentators had pointed out, and I am in broad sympathy with them, that the protection of group rights must also provide for the protection of rights of individuals within a group. Does this faith based approach to a civil suit then take into account the rights of other Hindus? (those who believe in the sanctity of the two other Ramjamnasthans at Ayodhya, those who oppose idol worship, those who believe that it is an insult to Ram to fix him to a geographical area)

5. Bannerjee and Yadav, in both their posts emphasize (rightly so) that the court was in some ways limited to the grounds raised by the Sunni Wakf Board. However, what they do not point out, is that the Wakf Board itself was prevented from raising several other grounds due to the Ayodhya Land Acquisition Act and the Ismail Farooqui judgment.

While Justice Verma's pronouncements on the sanctity of Mosques has been quoted, it is perhaps important also to note the powerful dissent of Justice Bharucha (he was joined by Justice Ahmadi, the only other minority judge on the bench).

Justices Ahmadi and Bharucha struck down the Ayodhya Act of 1993 as unconstitutional citing in particular s. 4, whose effect was that " the Sunni Wakf Board, which administered the mosque that was housed in the disputed structure, and the Muslim community lose their right to plead adverse possession of the disputed site from 1528 until 1949, if not up-to-date, considering that the idols remained in the disputed structure only under the orders of the courts. " Thus, the only ground on which the Wakf Board could litigate was whether a previous Ram temple stood on the stop of the Mosque.

They held that this was unconstitutional as it 'offended the principle of secularism', which is a part of the basic structure of the Constitution, being slanted in favour of one religious community as against another.

6. Bharucha and Ahmadi in a particularly scathing paragraph pointed out that it was clear that the government did not intend to be bound by the judicial decision (thus proving that it is the state that is alienated from the judiciary)and sought to use it only as a 'springboard for negotiations'. "It leaves us in no doubt that even
in the circumstance that this Court opines that no Hindu temple or Hindu religious structure existed on the disputed site before the disputed structure was built thereon, there is no certainty that the mosque will be rebuilt."


7. I agree with Bannerjee and Yadav that the judgment is central in determining public faith in the courts. Justice Bharucha seems to have been prescient when he noted that the court of law was not competent to answer such a question.
"the Court being ill-equipped to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides that it was rendered without hearing them or their evidence. This would ordinarily be of no significance for they had chosen to stay away, but this opinion is intended to create a public climate for negotiations and the criticism would find the public ear, to say nothing of the fact that it would impair this Court’s credibility." I note that the situtation before the Allahabad High Court was a little different, since both sides were allowed to read evidence but this does not appear to be the case with the ASI report which appears to be main evidence establishing the location of the prior temple. The historical evidence (and its use is questionable) merely establish that Ayodhya is the birthplace of Lord Ram (though it is doubtful whether the Ayodhya of the Traita Yuga, two cosmic cycles ago is the same location as the Ayodhya of now). What is actually contended is the exact location of the temple.


I close with Justice Bharucha's words

"Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it."

Guest Post: Faith in a Civil Suit and the Fundamental right to religion

Rohit De's recent posts have drawn attention to various aspects of British colonial interventions into the legal domain in colonial India. This guest post points out the contemporary significance of British colonial interventions in the sphere of religion, by focusing on the implications of a continuous line of case-law dating from the colonial era for the issues in the recent judgment of the Allahabad High Court in the Ayodhya case.

In their previous guest post, Bhupender Yadav and Vikramjit Bannerjee, the lawyers for Sri Ram Lalla Virajman and some other Hindu parties in the Ayodhya case, drew attention to the pleadings and the issues framed in the suits before the Allahabad High Court. In this follow up post, they seek to make good their claim by relying on case-law that they assert dates back to the colonial era:
............................................................................
There have been discussions especially by venerable academics and media commentators that faith has no place in civil litigation. The question is, is this true? To answer that question, it is important to note that the Courts have, at least from the time of the Company Raj, dealt with the faiths of India through the courts and the law, which lead to continuous resentment amongst the governed as to foreign interference in their religious affairs. Therefore post the Great Revolution of 1857 (which was substantially attributed to religious resentment), the British Government was forced to directly take over the government of country ending the reign of the Company Bahadur. Queen Victoria issued her famous “Proclamation” to her Indian subjects in 1858 which was to govern the policy of the British Raj henceforth, which included the following amongst other policy statements:

“ Firmly relying on the truth of Christianity , and acknowledging with gratitude the solace of religion , We disclaim alike the right and desire to impose Our convictions on any of our subjects. We declare it to be Our Royal will and pleasure that none in anywise favoured , none molested , or disquieted by reason of their religious faith or observance ; but that all shall alike enjoy the equal and impartial protection of the law , and We do strictly charge and enjoin all those who may be in authority under Us, that they abstain from all interference with religious belief or worship of any of our subjects , on pain of our highest displeasure.”

The British Courts thereafter came up with a very nuanced manner of dealing with religious belief, holding that the Courts can adjudicate on matters of religion but will not test the rationality of the belief system, which is genuinely held. The courts essentially decided the questions which were placed before them based on the belief system from which the disputes arose. (Syed Asrar Ahmed v. Dargah Committee, Advocate General of Bombay v. Yusuff Ali Ebrahim and Jamshed Tarachand v. Soonabai). After independence that has been the view of the Supreme Court as well. Saraswati Ammal v. Rajagopal Ammal has specifically held what is a religious purpose under the Hindu law must be determined according to Hindu notions.

In Bijoe Emmannuel v. State of Kerala, which dealt with the refusal of some children of the Christian Jehovah’s Witness sect to sing the national anthem, the Court held:

“….(t)hat the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”

The question therefore of the conflict of reason and faith or law or faith is a non issue because the court cannot go into it at all, it can only go into the fact as to whether such a belief is genuinely and conscientiously held, that is all.

In order to consider as to what constitutes “essential or integral part” of a certain religion, the Supreme Court has held that it has to be determined with reference to doctrines, practices, tenets, historical background of that religion. ( Commissioner of Police v. Acharya J. Avadhutananda).

Coming back to the present case, the Supreme Court in Ismail Faruqui v. Union of India (the Ram Janmabhumi case) famously held:

“ While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially.”

The Court in the same case also specifically discounted the argument of the Muslim parties that “once a Mosque always a Mosque” based on a long line of judicial authorities

Now, the fact that Bhagwan Sri Ram is an integral part of the religion of Hindus and Hindus believe that Bhagwan Sri Ram was born in Ayodhya has been specifically admitted unanimously by all the parties to the present civil suits, the only dispute was to as to whether Bhagwan Ram was born at the site and whether the Hindus considered the place to be Ram Janmasthan . This admission is recorded by Justice SU Khan in his judgment at page 233:

“ At this juncture, it may also be noted that Sri Zafaryab Jilani, learned counsel for Waqf Board and other Muslim parties had given his statement under Order X Rule 2, C.P.C. on 22.4.2009 and categorically stated that his parties did not dispute that Lord Ram was born at Ayodhya (previously this was also an area of dispute between the parties). Sri Jilani during arguments repeatedly contended that it was not disputed that Lord Ram was born at Ayodhya, however he very seriously disputed the assertion that Lord Ram was born at the premises in dispute. Similar statement under order X Rule 2 C.P.C. was given on the same date by Messrs M.A. Siddiqui and Syed Irfan Ahmad learned counsel for other Muslim parties.

The statement is quoted below:-
“For the purposes of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever…………..””

The fact that the Hindus held the disputed site as the birthplace of Bhagwan Ram therefore had to be proved by evidence and that the said site was considered to be integral to the Hindu religion had also to be proved by evidence , which was done in the present case . The question of rationality was never in issue and could not be an issue anyway.

The Muslim parties never stated in any of the pleadings that the supposed Babri Masjid had any special significance in Islam. In fact it is recorded in Ismail Faruqui v. Union of India that the said Babri Mosque had no special religious significance for the people who followed Islam.

Civil Courts have the power to adjudicate on questions of violations of fundamental rights under Article 25 and 26 of the Constitution in a civil suit (Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma). Therefore, in the present case, the Court was asked to consider a broader question of weighing a claim which showed that one religious group had treated the site as an integral and essential part of their religion and another claim of those who though held it to be supposedly a place of worship however never contended that it was either essential or integral part of their religion.

The Allahabad High Court felt that it was called to tender relief “ex debito justitiae” that is to come to a conclusion which administers justice between the parties which is a condition precedent to granting injunction in any civil suit and so in it’s own peculiar way tried to strike that balance . As Justice Sudhir Agarwal therefore noted in his judgment:

“ 4559. Plaintiffs have sought a declaration that the entire premises described vide Annexures- 1, 2 and 3 belonged to the plaintiffs deities and also a permanent injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any restriction on the construction of the new temple at Sri Ram Janambhumi Ayodhya. We have already held that the area under the central dome of the disputed construction believed and worshipped by the Hindu people as the place of birth of Lord Rama and they were worshiping thereat since time immemorial. This part of the land constitutes deity, "Sri Ram Janamsthan", and a place of special significance for Hindus. Therefore it has to be treated in a manner where the very right of worship of Hindus of place of birth of Lord Rama is not extinguished or otherwise interfered with. We have simultaneously held that so far as other land within the inner courtyard of the disputed structure is concerned, this open land had been continuously used by members of both the communities for their respective prayers and worship for decades and centuries.

4560. Though the prayer in the suit is worded in the different manner but for complete justice and to avoid multiplicity of litigation as also the adjudication which may settled centuries old dispute finally, we are of the view that we can mould the wordings of the reliefs and can pass an order in respect to respective parties in this case which as suuch may not be covered by the form of relief but is within the scope of the case. In this regard we can rely on the provision under Order VII Rule 7 CPC.”

In our view, whatever be the legal merits of the trifurcation of the land (and there are serious legal objections to that), it is time that there is a serious discussion on the underlying issues since this judgment has the potential of either being the starting point for a grand reconciliation between the two major religious communities in India or it may be the starting point to a complete alienation of the majority community from the apparatus of the state and the judicial process. In all this bluster that is something which we should think about seriously.

Alibi's of Empire

Karuna Mantena's first book, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism joins a growing conversation around the British codification of law in India. Mantena, a political theorist by training, is interesting in examining the tension between liberalism and empire, particularly when the supposedly universal values of liberalism (free markets, equal rational individuals etc) and the cultural difference of empire. As a rich body of scholarship has uncovered English Benthamite utilitarians came to dominate the project of law reform in India and their universalist claims had to content both with the imbalance of power and the cultural differences between India and Britain.

Mantena focuses on the career of Sir Henry Maine, lawyer and historian, who served as the Law Member on the Viceregal Council between 1861 and 1869. His tenure saw the completion of several codes that had been proposed by Macaulay in 1832 and made several contributions to the development of the Indian Contract Act, the Native Converts Act, the earliest divorce and civil marriage laws, the Evidence Act, the decentralization of finances and the growth of municipal administration as well as thorny questions over the interpretation of treaties with the princely states. In his classic, Ancient Law, Maine put forward his theory of social development stating that the movement in progressive societies was from 'status to contract'. He therefore explained the development of the notion of 'bundle of rights' in property and the growth of primogeniture and wills in managing property.

Mantena argues that Maine was a central figure in the turn from a liberal universalist to a more cultural relativist understanding of empire and legal transformation. His reading of differences between traditional and modern societies and his arrival in India after the revolt of 1857, shaped his views on legal change in the colony. The attempt was to preserve and work with 'traditional structures' and social systems, which were earlier viewed as impediments to development. Mantena, provides evidence of this through her close reading of Maine's policies towards land revenue, property law and customary law, particularly in the case of Punjab. Scholars like Radhika Singha and Neeladri Bhattacharya have shown that this attempt to preserve traditional orders and social customs, actually led to the 'invention' of new customs.

A more thorough review of Mantena's work, especially on Maine's failiure to bring about a uniform civil code can be found in Ishita Pande's review in this weeks EPW EPW.

Needless to say, in an era of global legal reforms and attempts to transplant legal institutions, it is critical to examine the first global rule of law project i.e. in the British Empire.

The most pressing legal issue of the day?

I will sometimes ask students which right in the constitution they think is most important to Indians. Although I haven't done this exercise elsewhere, I suspect in the United States students there would answer the 1st amendment of the U.S. Constitution, or the freedom of expression, given its centrality in American history. In Germany, whose constitution was created in the wake of the horrors of WWII I think they would say article one, or human dignity. In India, the answer from students in my experience is almost invariably the same. First, they say most Indians do not know a single article, or right, in their constitution. Second, the students reply that if they did, Indians would answer that the right to life, or Article 21, is the most important. This is because the Supreme Court has interpreted it to require the government to provide the necessities of life to its citizens including food, health care, and education.

It's not that a typical Indian doesn't value free speech or equality. Many Indians, poor and rich, have fought, and even died, for these rights. Still, in my experience Indians tend to view the government's efforts to lift the population out of poverty as the core promise of the Indian state. Whether you talk to a day labourer in rural Madhya Pradesh or a worker in a slum in Mumbai, you hear it again and again: the government should be providing better schools, or clean water, or decent health care, and it needs to be much, much less corrupt.

With this in mind, in my opinion the biggest legal challenge in India today is not Ayodhya, or the constitutionality of reservations, or POSCO, or NAZ; even though these are all critical to how India's future will be shaped and in some cases threaten to potentially tear the country apart. Instead, I would argue that the largest challenge is to close the gap between what the law says and what is implemented. That is because without overcoming this issue the government cannot hope to use its policies to improve the standard of living of the bulk of its population. It will keep faltering on and breaking its promise.

So I read with great interest this morning that the National Advisory Council was finally moving ahead with the National Food Security Act, proposed legislation which has been discussed on this blog before. Few other pieces of proposed legislation in recent memory have had the potential to transform the lives of so many so radically. The thrust of the NACs recommendation that they will be used to help draft the NFSA was that 75% of Indians should have a legal entitlement to food grain under the Public Distribution System (PDS) - 90% of people in rural areas and 50% in urban. Instead of using the old BPL and APL categories, new categories of priority and general households will be created (and defined by the government) which will determine how much grain a household can claim.

Jean Dreze, also a member of the NAC, issued a letter stating his disagreement with the NACs . Amongst other reservations, he had been advocating universalisation of the PDS and argues the new categories of priority and general households in the proposal just continue the "artificial and divisive distinction of APL and BPL households."

These recommendations (which it should be made clear have not been consolidated and refined into any sort of draft bill) struck me as disappointing as well. For me, the real concern came in the lack of attention or details given to how the bill would actually be implemented. This dovetails with Dreze's argument (as I understand it) in some ways. Universalisation of PDS is often seen by its advocates as a way to bypass the massive difficulties that arise when you attempt to target a social welfare program in India - many families are miscategorized in what is often an expensive, corrupt, and often arbitrary process of targeting. If you are going to subsidize grain to 75% of the population, why not 100%, if the cost of targeting is so high and many of the 25% who don't need such grain would not show up to claim it anyway?

The merit of targeting versus universalization is for another forum, but if you are going to have a targeted system you need a clear vision in how you will implement it. The NAC's relative silence on implementation seems disturbing.

The UPAs recent answer to implementation problems has been to create legally enforceable rights to government programs - whether NREGA, or education, or information, and now food. This sounds promising: people now have the right to go out and claim a government program instead of having to rely on the whims of the administrative state to give it to them. However, as the NREGA experience shows very few people - especially the poor -have attempted to enforce these rights and there is no clear system in place to allow them to do so (the relative success of the right to information act in contrast is arguably the exception that proves the rule). Creating "legal entitlements" doesn't do anyone any good unless there are practical ways that the poor can use to enforce these rights, or there is a system in place to independently ensure these entitlements are given.

I do not think enough intellectual heavy lifting has been done in India to understand the relative merits of different administrative accountability mechanisms to close this implementation gap - whether such mechanisms are administrative tribunals, district courts, commissioner's offices, constitutional torts, administrative fines, independent prosecutors, legally empowered social workers, etc. I am not saying such a task is easy. Having thought some about the relative merits of different administrative accountability measures myself I can say it is certainly not a simple legal problem. Few legal problems require you to have such a detailed knowledge not only of the law, but also policy, different government institutions and their structures and cultures, and the attitudes and needs of the poor. It is easy to become overwhelmed when thinking about how one would go about controlling the Indian bureaucracy in a productive way for ordinary Indians.

I have found that a handful of economists (like Jean Dreze) have taken the task on of trying to figure out these administrative law problems, but to my surprise I have found very few lawyers doing the same. I am not sure why this is. Perhaps it's an undue fixation on the Supreme Court or High Courts being the center of the pressing legal problems of the day. Maybe it's because law schools do not really teach how to approach or reform institutions, but instead mostly still force their students to memorize treatises on black letter law with occasional discussion about how a case can effect policy. I may be wrong in my assessment and I hope I am. Still, my feeling is that the legal community needs more debate about and understanding of how they can help work to fill this implementation gap. After all, it may be the most pressing legal problem of the day.

[Note: If you do know of good work being done in the area of thinking about how administrative law can better be used to implement government policy please leave it in the comments section as I know I would be curious and others might be as well.]

How about 'partner'?

The Supreme Court's judgment in Velusamy v Patchaiammal yesterday drew sharp criticism from Additional Solicitor General Indira Jaising, and rightly so.

The case was about the the rights of an unmarried partner under the Domestic Violence Act 2005. The remarkable para 33 of the judgment is worth reproducing in full:

In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(see `Common Law Marriage' in Wikipedia on Google) In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.

Thus, the judgment clarifies the scope of the Act in its application to unmarried cohabitees. Although the conditions seem mostly sensible (except perhaps condition (c) which may exclude same-sex couples and unmarried partners of married persons), what is remarkable is that the judgment cites the anonymously-and-freely-editable Wikipedia as its source for laying down the conditions! Wouldn't it have been better for the court to draw upon other jurisdictions dealing with the same issues instead (see the Report of the UK Law Commission on Cohabitation, for example)?

The substance of the case aside, what angered Ms Jaising was the Court's use of the word 'keep' for the cohabiting female partner. Apparently, Justice Thakur responded by asking her whether the expression 'concubine' would have been more appropriate than the word 'keep'. With respect, Your Lordships, neither word is acceptable. 'Keep' denigrates a woman to the level of a man's property, while 'concubine' has demeaning connotations for a woman who is in a live-in relationship. So, what is the alternative? Many cultures have started using the word 'partner' for all long-term romantic relationships: unlike husband, wife, keep, concubine, etc it is a nice neutral term which does not disclose your sex, sexual orientation or marital status (and many cultures and jurisdictions are moving towards considering these markers as irrelevant to the respect and protection that a relationship deserves). Unlike 'boyfriend' or 'girlfriend', it connotes a certain seriousness and longtermliness that some couples may want to attach to their relationship. 'Cohabitee' could be another alternative, although it does not distinguish roommates from partners.

Whatever alternative we may settle on, I think it is important that our public institutions and functionaries stand up for much-maligned political correctness. Political correctness goes mad only when we start censoring comedians, cartoonists, writers and artists for taking un-PC liberties: unlike the state, their role is to offend, to make us uncomfortable.

Update: A reader who wants to remain anonymous has helpfully pointed out that the relationship at issue in the case was not what I have described as a 'partner', and that 'girlfriend' would perhaps be a more apt (and respectful) description. I am grateful for this correction.

The Rule of Law in Colonial India

Elizabeth Kolsky's, Colonial Justice in British India: White Violence and the Rule of Law recently published by Cambridge University Press is a significant intervention into understanding how criminal law comes to operate in India. Kolsky challenges the central justification of British governance, the promise of the rule of law as opposed to the rule of men. The British strove to justify their imperial project, and differentiate themselves from 'personal and arbitrary rule of the Oriental despot' and the 'cruelty and bigotry' of rival empires like the Spanish by appealing to the idea of the rule of law.

Kolsky specifically focuses on cases of white violence i.e. violence committed by Europeans (often planters and soldiers) upon natives to demonstrate that despite a rhetorical stance of legal equality, legal practice and conventions placed most Europeans in India above the law and, in effect, tolerated and condoned widespread physical assault and abuse. She argues that 'This violated the theory of equal protection that undergirded the rule of law and made law complicit in acts of racial violence rather than a guard against them'.

Her book offers much of interest to lawyers. particularly those who are interested in the codification of Indian criminal law. She traces the tensions between Utilitarian attempts at crafting a 'universal criminal law' and the specifics of the colonial context. For instance the first Code of Criminal Procedure secured the legal superiority of “European-born British subjects” by reserving to them special privileges such as the right to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments.

While there have been some challenges made to the colonial nature of our criminal law (most notably in the Naz Foundation case, and in the case of sedition), there has been little attempt to think through the context in which the Indian criminal codes were developed. Kolsky argues that the colonial context, and the 'notion of difference' between Europeans and Indians was central to the project of codificaiton.


It is interesting to note the differences that emerge between Indian criminal law and the law of crimes in Britain. For instance, the Penal Code's treatment of The Code’s treatment of interpersonal violence differed profoundly from that in English criminal law. As Jordana Bailkin points out,

As soon as the fact of killing was proved against a prisoner in England, the law assumed such malice on his part as to make the charge murder; the defense had to prove the facts extenuating the charge. In India, the burden was on the prosecution to show that the accused had had intention to kill.

Vernacular newspapers suggested that this ease of defence created a culture of impunity for whites in India.

The Penal Code also provided ways to read down the murder charges. The right of self-defense was expressed in wider terms in India than in England because of Macaulay’s concern about native laziness and passivity regarding physical attacks. A wide latitude on self defence was to help rouse 'manly spirit' amongst Indians. Culpable homicide was not murder if the offender was a public servant who had caused death by an act that he believed to be necessary for the discharge of his duties. If the accused committed the fatal act under grave provocation, then the charge was reduced. As Bailkin notes elsewhere, “Provocation” was not limited to the threat of physical force, but included such acts as failing to work in a speedy manner and using insulting language".

In contrast to English law, the law relating to provocation in India considered the 'relative physical strength of the participants and the ethnic and temperamental traits of the accused'. Indian law also allowed a lapse of time between the provocation and the retaliatory act. Overall, defendants could plead provocation much
more easily in India than in England.

Equally fascinating is Elizabeth Kolsky's engagement with early medical jurisprudence. She examines how a variation of the 'eggshell skull' defence emerged in colonial India, suggesting that native Indians often had enlarged spleens which would be ruptured even when faced with mild force. Thus, exonerating several Europeans who beat their servants to death.

Elizabeth Kolsky has been working on questions on race, violence and criminal law in colonial India for several years now. Her Phd thesis at Columbia University titled 'The Body Evidencing the Crime: Gender, Law and Medicine in Colonial India' examines through rape trials in India, the codification of criminal procedure, the development of medical jurisprudence and the admission of expert testimony in criminal trials. Comparing caselaw of the Bengal Nizamat Adalats and the Indian High Court's Kolsky made the striking discovery that as the colonial legal system became more 'rational and systematic' convictions of rape cases went down.

In her recent article in Gender and History, Kolsky persuasively challenges the narrative of British claims of legal reform that aimed at 'saving Indian women' through the analysis of rape law which "concludes that the modernisation of law and the development of a new medico-legal understanding of rape introduced evidentiary standards that placed a heavy burden on Indian women seeking judicial remedy in colonial courts. The fear imported from Britain of false charges combined with colonial views about Indian culture to make native female complainants doubly dubious." She contends that it is this colonial jurisprudence that has survived to devastating effect in postcolonial India and Pakistan in ways that are explored and explained by the author.

Kolsky's current research project examines criminal law in the North West Frontier Province and engages with ideas of tribe, frontier and Islam and the role they play in the constitution of criminal law.

Delhi High Court: Dowry vs. Bribery

1. On October 20, 2010 the Delhi High Court in Pooja Saxena v. State held that a family that pays dowry in the fear that their daughter’s marriage will be called off if they do not make the payment, and in order to preserve the family's honor, will not be said to have committed an offence. The Dowry Prohibition Act, 1961 renders both giving and taking dowry an offence. While interpreting section 7(3) of the statute, the Delhi High Court has in its order recognized that the giver of dowry is in some circumstances a victim.

2. On September 24, 2010 the Delhi High Court in Aniruddha Bahal v. State held that a journalist who attempts to bribe a public official in a sting operation was not committing an offence under the Prevention of Corruption Act. Incidentally, the case involved the infamous cash for questions scam, from which at least one leading Supreme Court precedent has emerged [Raja Ram Pal v. Speaker] [discussed here]. The High Court recognized that there is an element of public interest in carrying out such sting operations: given the "fundamental right" to a corruption free system, and the corresponding constitutional duty to expose corruption.

The question which I wanted to put to debate was: are these two cases capable of being linked? Both cases recognize that under certain circumstances making a payment prohibited by law, either dowry or bribery, is justified. The dowry case recognizes that the person making the payment is a victim, who the law should not punish. The cash-for-questions case recognizes that the person making the payment did not “intend” to commit the crime, but acted in the public interest. The question is: can a bribe payer, in some limited circumstances, be seen as a victim of the system, who must either abide by its rotten conventions, or fall by the wayside?

Of course, one would find it extremely hard to consider the corporation which greases palms in order to do business in India, or the multinational accused of committing FCPA violations in India, a “victim” of bribery in any way, as opposed to a facilitator. But what of the common man? Is he, although to a much lesser extent than the family forced to pay its last rupee to marry their daughter off, a victim? I do not intend by posing this question to equate the grave ill of dowry in India to corruption. But in trying to disincentivize illegal payments, does our law punish the victim?

Guest Post: The Curious Case of the Anti-torture Bill

I am pleased to publish another guest post from Arghya Sengupta, on the Prevention of Torture Bill 2010 - a topic that has been previously discussed on this blog.
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I.K. Gujral, the former Prime Minister, being the internationalist that he was, thought that signing the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was a good idea. Subsequent Prime Ministers evidently did not share his view, as despite its accession to the Convention in 1997, India remains one of the few countries, and certainly one of the few significant ones, to have not ratified the Convention. Thus when it was mentioned during the course of the Monsoon Session of Parliament that the government was readying an anti-torture legislation as ratification to the Convention requires, most, including myself, assumed that the government had had a change of heart. That is, till the legislation became public. Not only had Messrs Chidambaram and G. K. Pillai not had a change of heart, on the contrary, in the guise of an anti-torture legislation, the Bill sought to be passed legitimised torture to the greatest extent possible politically. The hardline credentials of the Home Ministry thus remained intact and the bill itself was referred to a Rajya Sabha Select Committee for recommendations.

This turn of events raises the following questions: Why was the Anti-Torture Bill sought to be passed at a time when clearly the Home Minister responsible for passing it and implementing its provisions has shown little intention of doing so? What could the Ministry have been thinking when it stated in the Preamble that the Bill was in pursuance of the necessity ‘to ratify the (said) Convention (UN Convention against Torture) and to provide for more effective implementation’ when the Bill itself failed to comply with both the letter and spirit of the Convention? Was it an attempt to hoodwink the Parliament and consequently the population into believing that this was an anti-torture legislation which would weed out the most commonly used instrument of state atrocity?

These are questions, answers to which we may never get. To understand however the curious nature of the legislation and why it is so egregiously violative of international law, a closer scrutiny of its provisions is warranted. The Pre-Legislative Briefing Service Report titled “The Prevention of Torture Bill, 2010: A Briefing Document” which we presented before the Parliamentary Select Committee yesterday, does precisely this. In this Report, we examine clauses 3, 4, 5, and 6 of the Bill on two metrics – their compliance with the Convention and their coherence with existing domestic law and Supreme Court jurisprudence. On both counts we find the Bill has fallen short. We thus suggest appropriate amendments to ensure that the anti-torture legislation is what it purports to be- a legislation prohibiting torture, adopts CAT standards in this regard and irons out inconsistencies with contrary statutory provisions, while at the same time ensuring that the provisions proscribing torture are not liable to rampant misuse. In sum, our effort in this report has been to reshape the legislation in a manner which is theoretically justified, practically efficacious and avoids taking a myopic view of India’s international law commitments, privileging short term symbolic conformity over actual substantive compliance as the present legislation does. Any comments or suggestions on our Report would be greatly appreciated and may be mailed to prelegislativebriefingservice@gmail.com.

Neighbourhood Court Watch

I just wanted to draw the attention of our readers to some fascinating constitutional developments in our neighborhood.

1. A month ago the Sri Lankan Parliament ratified the 18th Amendment to their Constitution which ended Presidential term limits, abolished the Constitutional Council giving the President direct say about appointments to the judiciary, the Human Rights Commission, the Public Service Commission, the corruption regulatory bodies and the election commission, and gave the President power to attend and address parliament. As a semi-presidential unitary government elected through a combination of direct and proportional representation, the Sri Lankan constitution is unique to South Asia.

Sri Lanka's moves towards authoritarian government offer an interesting insight into debates over constitutional design. Harvard professor Cindy Skach has been highlighting the popularity of semi presidential forms of government in the third wave of democratization in the 1990s.This constitutional type combines a popularly elected head of state with a head of government who is responsible to a popularly elected legislature.

In her Constitutional Origins of Dictatorship and Democracy, Skach cautions against the hasty adoption of semi-presidential models due to the challenges it poses to democracy, constitutionalism and the protection of fundamental rights.


2. The Pakistani Supreme Court seems to continue to boldly go where no judiciary has gone before. As Ejaz Haider notes in the Indian Express , the Chief Justice hearing a rumor that the embattled Zardari government might attempt to remove him called a full meeting of the Supreme Court. All 17 judges issued a press communique stating that any attempt to do so would lead to the Supreme Court moving suo moto against the government under Article 6 of the Constitution i.e. charging them with high treason. Despite government denials of any such plans, the Court summoned the Attorney General and demanded a written assurance from the government.

In an unprecedented show of political unity, Prime Minister Gilani backed by the Chief Ministers of Sindh, Baluchistan and Khyber Paktunva, a senior Minister from Punjab, and the executive heads of Pakistan Administered Kashmir and Gilgit-Baltistan stated that the government respected the independence of the judiciary but the judiciary too must believe the Prime Minister when he says something. He refused to give a statement in writing arguing that the word of the Prime Minister was enough.

This is the first time that the entire political class of Pakistan has lined up against the Supreme Court (though Shahbaz Sharif, the Muslim League Chief Minister of Punjab send a deputy instead of coming himself). So far, the judiciary has always found some allies in the political class. It would be interesting to see how the Pakistani judiciary executive conflict shapes from now on.

3. On the 5th of October, the Supreme Court of Bangladesh reasserted their authority over the constitution by clarifying their decision earlier this year that had struck down the Fifth Amendment to the Constitution.

Holding that secularism was part of the basic structure of the Constitution the court ruled that "in a secular state, everybody has religious freedom, and therefore no man, woman or child can be forced to wear religious attires like burqa, cap and dhoti". The court had taken suo moto action after coming across a newspaper report about a woman's college issuing a directive prohibition women from coming onto campus without a burqa. The court also held that similiarly, no one can be prohibited from wearing a burqa if they chose too.

4. The Bangladesh Supreme Court's declaration of the Fifth and Seventh Amendments voided also opened up an interesting procedural question. Did the Court's declaration of invalidity automatically amend the constitution or does the parliament have to correct the Constitution through a further process of amendment. The law minister seems to have resolved the debate stating that the government would just reprint the Constitution without the amendments, thus in effect restoring several older provisions.

5. Bhutan's fascinating constitutional trajectory continues. Earlier this month, the government issued a ban on Buddhist and Hindu clergy from voting in the elections to keep religion and state separated. Mahayana Buddhism is officially the state religion of Bhutan and the constitution provides for a dual system of administration with the religious branch headed by a chief abbot and an administrative branch headed by the King. The King is required to be Buddhist and all parliamentary sessions concluded by Buddhist prayers. Clergy were allowed to vote in the first elections in 2007.

Interestingly, in 'secular' India the Buddhist clergy have a separate right of representation. An amendment to the Representation of People's Act in 1949 provided that one seat out of the 32 seats in the Assembly of Sikkim will be reserved for a representative of the Buddhist sangha who will be elected by a statewide constituency of Buddhist monks. To the best of my knowledge, this is one of the few examples of separate electorates in independent India. Buddhist nuns were allowed to vote as a part of this constituency for the first time in 2009

6. Meanwhile in Nepal, there has been an attempt to involve the Supreme Court in the deadlock in the interim parliament/constituent assembly. Over the last few months, the parliament has attempted eight times to elect a leader of the house and failed. The CA regulations requires a winning candidate to get 300 votes from a 599 member assembly, however it also permits MP's to remain neutral and abstain. A group of lawyers have recently petitioned the Supreme Court of Nepal asking that the 'neutrality provision' be declared unconstitutional. The Court is currently hearing the matter.

7. Finally, the Supreme Court of Maldives finds itself in midst of a deepening crisis between the President Nasheed and an opposition dominated parliament. The Constitution provides for a Presidential cabinet which is endorsed by parliament and ministers who can be summoned to appear before parliamentary subcommittees.

President Naheed had shocked the Maldivian system when he defeated President Gayoom in 2008. Gayoom had governed Maldives for thirty years. The parliament (Majlis) continues to be dominated by members of Gayoom's party. The opposition was combative and Naheed's minister's complained that they were following a 'scorched earth' policy to obstruct government. In July this year, the entire 13 member cabinet resigned protesting the behaviour of opposition MPs who they said were “hijacking” the powers of the executive and making it impossible for the cabinet Ministers to discharge their constitutional duties and deliver the government’s election manifesto. In July, Nasheed reappointed the cabinet.

However, the opposition dominated Majlis has been demanding that constitutional procedure requires them to be re-endorsed by them. Nasheed refuses to accept this process arguing that Parliamentary endorsement was intended to be ceremonial and submitting to an American style endorsement process is tantamount to permitting 13 no confidence motions against the government.

The Attorney General has moved the Supreme Court for writ to declare as null and void.