Operation Majnu: Illegal Policing

The cops in Gaziabad 'punished' young couples in parks this morning by making them do sit-ups (calling it 'Operation Majnu'). The case highlights the need for the upper judiciary to clarify that section 294(a) of the IPC does not cover couples sitting together in parks showing affection towards each other (see our previous blog post on this issue here. See also this previous post on 'cultural policing'.).

What annoys me most about this case, however, is that even if what those couples were up to does amount to obscenity prohibited by s 294(a), there is absolutely no legal power with the police to punish the couples in this case. The police is a preventative, investigative and perhaps prosecuting agency - the task of punishment is normally that of the judiciary alone. Sometimes laws give police the power to fine offenders for minor offences. As far as I am aware, there is no law giving police the power to punish anyone for violation of section 294(a). This corporal punishment was inflicted without fair trial and without the authority of any law.

The Delhi High Court held in Manushi Sangathan v Govt of Delhi that 'there is no power in the MCD, much less the Delhi Police, to seize and either sell in auction or destroy a rickshaw even where it is found to be driven without a licence or by a person not having a proper licence.' [para 63] That case turned on the right to property guaranteed by the constitution, which the Court rightly held can only be taken away by law. (see our previous post on that case here). Right to liberty, which is involved in the case of Operation Majnu, is a fundamental right and therefore on a higher status than the right to property. It cannot be infringed without express provision of the law, which must be just, fair and reasonable. The cops in this case have clearly violated the law, as well as the constitution. They must be held to account.

Air India Cabin Crew Association v Union of India

The Supreme Court has delivered an important judgment in Air India Cabin Crew Association v Union of India last week. Here is the press note sent to me summarising the judgment. The judgment is available on JUDIS, but I couldn't find a direct link to post here.

A Supreme Court bench of Justices Altamas Kabir and Cyriac Joseph, on November 17, upheld Air India’s 2005 decision to abandon its policy of reserving the In-flight Supervisor designation to its male cabin crew. An Inflight Supervisor is the boss-in-charge of all cabin crew on board a flight – i.e. female cabin crew or Air hostesses, as well as male cabin crew, Flight Pursers. Once on board the aircraft, all cabin crew, whether Air hostess or Flight Purser, are under the direct supervision of the Inflight Supervisor.

Until 2005, only men were designated by Air India as Inflight Supervisors. This meant that male Flight Pursers who were appointed Inflight Supervisors would supervise the work of all Air hostesses, including those who were many grades above them and many years senior to them. 


In December 2005, Air India decided to end this blatantly discriminatory practice, announced that Inflight Supervisors will be appointed from among both genders, and designated 10 women Senior Managers (each of whom had more than 30 years of flying experience), as Inflight Supervisors. This decision of Air India was challenged by the male Flight Pursers before the Delhi High Court, claiming that agreements between their union and Air India preserved the position of Inflight Supervisor only for men, and also claiming that the Supreme Court of India had recognized this right.

On 8 October 2007 the Delhi High Court dismissed the Flight Pursers’ petition, holding that it was unable to discern in any of the agreements between the union and Air India, any assurance or promise to the male cabin crew that a female colleague of theirs will never be asked to perform the function of an In Flight Supervisor. It took note of the irony that although many of the Air hostesses had trained the flight pursers to perform the functions of Inflight Supervisor, they were themselves excluded from performing the function. The High Court held that Air India’s removing of the 'men only' tag from the position of Inflight Supervisor, was in keeping with the mandates of Articles 14 and 15 of the Constitution of India prohibiting discrimination on the grounds of sex, as well as binding international obligations under the Convention on the Elimination of Discrimination against Women(CEDAW). Air India, the high court held, had enabled its female cabin crew to break the Glass Ceiling and there was nothing unreasonable in male cabin crew being asked to serve on a flight which had their female colleague as an Inflight Supervisor.

The Flight Pursers challenged the Delhi High Court judgment before the Supreme Court, and in November 2007, the Supreme Court directed status quo, which meant that Air India was unable to implement its decision to bring about equality. By its judgment Thursday, the Supreme Court dismissed the petitions and upheld the Delhi High Court’s decision, recognizing Air India’s right to place an employee in a position where she would be best able to contribute to the Company.

The Supreme Court’s confirmation of the Delhi High Court judgment is an important milestone in the fight against discrimination by Air India’s female employees. Importantly in the present airline scenario, it is also a matter of sound business sense that the most experienced and the most capable are placed in positions of responsibility and that women are not kept from such positions on account of their gender.

Bar Exam Trends

I was looking through the March and July bar exam results and although there isn't yet too large of a sample set it seems as if definite trends are emerging. Overall, about 70% of those who sit for the exam pass it, although not unexpectedly only about 56% pass it who sit for it a second time. Women seem to do slightly better than men on the exam, but only by 1 or 2%. (for an international comparison, about 65% of those who take the New York bar exam pass it).

The more striking breakdowns are by state and the language in which the exam is taken (the same exam, which is entirely multiple choice, is translated into 9 languages, although I don't think anyone has taken it in Oriya yet). The passage rate for those who take the exam in English, is on average the highest of any language group, at about 80%. English is also by far the preferred language to take the exam in. About a third as many people take the exam in Hindi and the passage rate for them is about 60%. Gujarati is the next most popular language. For July these test takers passage rate was 65%, but in March it had only been 35%. The next largest group that takes it is those who do in Kannada, and they tend to do particularly poorly passing only about 30% of the time. You can look at the links for the results of the other language groups, but for most of the rest not enough people take them in these languages for clear statistical relevance to be established.

The statewise breakdown is also revealing, although not as much because of the passage rate. For example, those who took the exam in Bihar have an extremely high passage rate (98% for March). This might seem odd given the socio-economic indicators in Bihar, no matter what understanding might be out there in the popular imagination concerning their penchant for test-taking. Yet, only 106 people took the exam in the state that month. There are about 100 million people in Bihar. Maharashtra, which has about 110 million people, had almost 4000 people take the test. Considerably smaller Delhi had almost 2700 people take it. Amongst the lowest passage rates from states where lots of people seemed to take the test were interestingly in Andhra Pradesh, Gujarat, and Karnataka. Not naturally places one would assume would do poorly. However, it might just be that they have far more law schools and so far more test takers. Still, it's not obvious why some of the poorer states would have higher passage rates even if they had fewer students taking the test (one could imagine that they would just have fewer and worse students).

It will probably require results from a few more exams before one can come up with any real meaningful comparisons between the states, and have a big enough data set that one can say something concretely about all the language groups. Still, it does seem that if your English is good enough that you feel confident enough to take the exam in English that you are likely to do better than others around the country (this makes intuitive sense since the best law schools in India tend to be English only and most key legal resources, such as Supreme Court judgments, are in English). It also seems clear that different states are producing dramatically different numbers of (qualified) lawyers. Perhaps some of the test takers who took the exam in Maharashtra are from Bihar and will return there. However, it seems like certain states aren't currently producing very many lawyers, or for some reason students graduating in these states don't yet feel pressured enough to take the exam. Certainly, many law graduates don't go on to practice law and so won't take the test, but states like Bihar, Jharkhand, and Orissa currently have a statistically insignificant number of people take the exam in their state. It seems important to get to the bottom of what explains this and whether this should be a point of concern.

(Thanks to the folks at Rainmaker, who conduct the bar exam, for originally pointing me towards these statistics)

International Law through the Indian lens

International Law Curry joins a growing body of legal commentary including Spicy IP and LAOT. As the name suggests, ILC, provides an "Indian" perspective on international law questions, and in doing so seeks to provincialize some of its universalist claims.

Call for papers - new journal on telecommunications and broadcasting law

The National University of Juridical Sciences, India is launching a thematic journal on Telecommunication and Broadcasting Law (JTBL). It is conceived as an international peer-reviewed journal that will be dedicated to legal scholarship in the field of telecommunication and broadcasting laws around the globe. The Journal encourages deliberations on subjects of an interdisciplinary nature and would include review of laws and policies involved in the field.

The inaugural issue of the JTBL is slated for July 2012. Interested contributors can find out more by checking the details of the call for papers on the journal's website here or by emailing jtbl@nujs.edu.

Do Kiran Bedi's refund claims amount to corruption?

As someone who is pleased with the unprecedented attention that Anna's movement has brought to the issue of corruption in our public discourse, but critical of certain tactics of the movement which I fear can cause lasting damage to democratic institutions, and also of some of the provisions of the JanLokpal Bill, I have watched the 'revelations' about the members of Team Anna with interest. Some of it is indeed in the nature of a witch-hunt, and underscores the need for a strong anti-victimisation law to protect whistle-blowers and activists. Some attention obviously comes with being prominent in public life.

It was easy for liberals to condemn the attack on Prashant Bhushan for holding controversial views on Kashmir. Whatever the merit of his proposals, social censorship by vigilante groups has become a huge problem in India and we are still groping for a legal response.

The case of Kiran Bedi's inflated reimbursement claims for air travel to give lectures is less clear cut. Bedi seems not deny the facts, but has two defences:

1. Business class travel fare is an entitlement (almost contractual entitlement which is agreed upon by her acceptance of the invite), and in any case claimed with the knowledge ('deemed consent'?) of the organisers.

2. That the 'savings' have been used for a good cause (i.e. by her Trust for educating children).

I think it will be an interesting exercise to see whether this would amount to 'corruption' under the Jan Lokpal Bill. I must enter the caveat that I have no expertise in contract law except what I remember from the first year in law school, and much of the analysis to follow may depend on a good understanding of contract law. Nor have I looked at case-law to see how judges have interpreted the relevant legal provisions. I hope a wiser reader will show how I have completely misunderstood the law. So, I am just thinking aloud and not committed to these views:

The definition clause of the Jan Lokpal Bill borrows the definition of 'corruption' from the Prevention of Corruption Act 1988, with a proviso which is not relevant for this analysis.

The most directly relevant provision of the 1988 Act seems to me to be section 11:

Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain for himself, of or any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Prima facie, this definition applies only to public servants, and since Bedi was not acting as a public servant, she would be exempt. It is also not clear whether the people who invited her to give lectures would qualify as the relevant givers of the 'valuable thing'. But for our purposes of discovering whether Bedi has practised what she preaches, these technical exemptions based on the identity of the people involved in the transaction must be ignored for the moment (they do have a bearing on the question, to which I will return later). First we must focus on the substance of the offence of corruption in this provision (which I have highlighted in bold in the provision).

The provision demands that the accused by obtain 'any valuable thing without consideration, or for a consideration which he knows to be inadequate'. Presumably, the concept of 'consideration' is borrowed from contract law.

It seems clear to me that there was indeed some consideration (Bedi was after all taking a flight in order to provide a service in the form of a lecture). I am not a contract lawyer, but it does appear to me that the consideration in this case was indeed inadequate, and Bedi herself appears to accept this. The question is whether her two defences - consent and good purpose - apply.

That the organisers knew about inadequate consideration seems to be irrelevant since the law does not appear to accept consent as a defence. So, Bedi's first defence falls. The provision makes no reference whatsoever to the 'purpose' for which the valuable thing was obtained, so Bedi's second defence that it was for a good cause would be quite irrelevant in the eyes of the law.

Now we return to the fact that Bedi is not a public servant. Indian contract law, as far as I can recall, does not require adequacy of consideration, only that there must be some consideration. Thus, private citizens are indeed allowed by law to enter into transactions where one party gets too little consideration for what they have put in (except in some extreme cases of unfairness). The PCA 1988 modifies these rules in the special context of a public servant, and demands that consideration must also be adequate, and in fact attaches criminal liability to inadequate consideration. If Bedi had done what she has done as a public servant, her actions would most probably amount to corruption. As a private citizen, it is not illegal. Of course, if NGOs are covered by the LokPal, a suggestion that 'Team Anna' has opposed, and similarly stringent rules were applicable to NGO functionaries as they are to public servants, then Bedi may well have committed the offence of corruption.

I must reiterate that I have no personal knowledge of this case beyond what has been reported in the cited links, and I do not know enough to be able to tell whether Bedi's motives were benign. It appears from reports that her motives were indeed benign (again, no defence under this provision). This is just a technical analysis of applying a legal provision to some reported facts. Perhaps the law should take motives and purposes into account. But surely politicians deserve the benefit of this nuanced approach to corruption as much as Bedi?

Regulatory Barriers to Litigating in India

This interesting short paper "Regulatory Barriers to Litigation in India" by Prashant Narang recently came out in the Asian Journal of Law and Economics. The basic argument is that the regulatory framework of the legal profession in India frequently biases against new entrants to the profession and favors those with preexisting family connections.

Take the ban on advertising - Narang argues this clearly favors those with well-established family names limiting new entrants from building up a reputation through advertising. Or the ban on contingency fees? Again, it favors well-established players and means new entrants, who can't bank on getting cases through family connections, that are willing to take a risk on a case by using contingency fees are banned from doing so. The ban of moonlighting, or having another profession? This also favors those who can use family connections to catapult their reputation and enter the top tiers of the profession quickly. It limits the options of others without these connections to be academics or start their own business, etc. on the side, while they slowly build their reputation in court during the same period. Finally, he argues that restrictions on the size and nature of the law firm in India mean that they are more likely to be family dominated, and so less professional and meritocratic.

All these bar council rules might have been well-intentioned, and several may clearly have benefits, but it seems clear to me that the Bar Council has likely not taken into account these unintended negative consequences. This is in part because of the rather insular nature of the Bar Council (those who couldn't break into the profession because of the above mentioned barriers aren't going to be leading it and have a chance to reform the rules). Narang argues that there needs to be a rethink of the composition of the Bar Council, or at least those who make its rules, to make sure a more diverse set of interests are represented and to avoid regulatory capture.

I couldn't agree more. My limited experience with the Bar Council's regulation of Indian legal education is similar (and deserves a separate post). Essentially, it is a story of well-intended regulation having unintended and deleterious consequences because the rule making process is not carried out by a body that is representational enough or that receives (or actively seeks out) enough critical feedback.