32 Years Later Not Much Has Changed

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

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

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

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

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

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

Anna Hazare & the middle classes

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

Nandini Sundar on the Salwa Judum Order

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

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

There appears to have been three kinds of criticisms of the Court's use of neoliberalism as an explanation of Maoism:

1. That the causal connection between the two is factually incorrect. This is the criticism that Nandini Sundar primarily responds to.

2. That, irrespective of the veracity of the connection, it is inappropriate for judges to comment upon it (usual separation of powers reasons relating to judicial inexpertise in polycentric cases).

3. That, irrespective of the veracity of the connection, it was unwise of the judges to make that connection because it makes an otherwise sound order unnecessarily vulnerable to criticism.

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

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

Call for Papers - Socio-Legal Law Review

Socio-Legal Review

Call for Submissions

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

About the Journal

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

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

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

GUIDELINES FOR SUBMISSION

1. All contributions submitted to the journal should be original and should not be simultaneously considered by any other publication.

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

Social Rights in India

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

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

Supremacy of Parliament

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

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

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

NAC's style of drafting Bills

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

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