Land Acquisition, Development and the Constitution

In an article published in this month's Seminar Magazine, I argue that the debates surrounding the adoption of a fundamental right to property in the Constitution were centred around the somewhat paradoxical desire to achieve a liberal democratic legal order which guaranteed the rights to liberty, equality and property, while simultaneously embarking on a transformation of the economic and social order considered imperative to prevent a revolution. This transformation was pegged on a development strategy involving a move from a feudal agrarian to a capital intensive industrial society. A major component of this transformative agenda was land reform, involving zamindari abolition and redistribution of land among the landless peasants. Equally important, however, was state planned industrial growth and encouragement of growth of private industry. 

The article goes on to assess the history of land acquisition laws in this country against this backdrop. In particular, it analyses the key features of the Land Acquisition Act, 1894, including the major problems with its implementation. It then analyses the proposed Land Acquisition Rehabilitation and Resettlement Bill, with a view to determining the extent to which the bill addresses the problems with the Land Acquisition Act, 1894. Finally, the article describes the special constitutional provisions for the Scheduled Areas as contained in the Fifth and Sixth Schedules and analyses to what extent the LARR bill is compliant with existing constitutional guarantees.

The article can be accessed at this link. I have previously written about the fundamental right to property and issues of land acquisition in the context of development here, here, and here. 

3rd Annual SLR Essay Competition 2013

The Socio-Legal Review, with Khaitan and Co. and Sterling Developers, announces the 3rd Annual Essay Competition 2012-13, as part of its initiate to encourage writing on issues of contemporary relevance among students in South Asia.

The topics for this year's competition are:

a. Legislating on Land Acquisition: A Possible Consensual Model?
b. Extending Social Security to Developing Countries
c. The Viability of Supra-State Entities: The EU and Beyond

The deadline for submission of entries is March 31st, 2013.

Death and Delays

Continuing the conversation on the death penalty, here is an interesting post by Vrinda Bhandari on the Bhullar case and its implications both for the rarest of rare case doctrine, as well as for the issue of delays in deciding clemancy petitions.

Call for Applications for Doctoral and Post Doctoral fellowships for International Research Project on Proportionality Analysis

Country specialists for international research group on proportionality analysis

Five half time positions available in the following countries: South Africa, Canada, Germany, India and Poland.

Academic background: A doctorate degree in law or in one of the fields in the social sciences (e.g. political science, economics, sociology, psychology); For researchers without a doctorate degree in law, a strong background in law is required; Experience (i.e. published works) using social science research methods: qualitative and/or quantitative (e.g. interviews, archival work, organizational research, surveys, experiments, etc.).

Each country specialist will be a member of an international group of researchers headed by the principal investigator (PI). The country specialist will plan and manage the project's research activities in his/her country, in coordination with the rest of the group and the PI (The tasks detailed in this document can be also divided between two researchers in a country, in coordination with the PI).

These activities involve:

(1)        Conducting a review of the legal aspects of proportionality analysis (PA) in her/his country, as part of a comparative legal study that constitutes an important first stage of the project. This research will be in collaborations with the research group and the PI;

(2)        Conducting a study of the policy making process in her/his country with an emphasis on the existing integration of human rights and proportionality considerations in this process. This study will also be part of a comparative policy study which will be undertaken by the research group. This will involve original data gathering such as interviews with relevant office-holders, archival documents, participant-observations, and other methods, as will deem appropriate and practical in coordination with the principal investigator.

The main goal of activities (1) and (2) is to provide both normative conclusions about the application of PA, as well as knowledge and ideas regarding potential methods, guidelines, rules, distinctions and implications (whether general or specific to certain domains), that may be used to increase the quality and consistency of decisions, based on proportionality analysis in policy processes.

(3)        Conducting a set of experiments in her/his respective country. This involves making the scientific and logistic preparations, preparing and selecting the textual materials (cases), conducting pilots (where necessary), assessing reliability and validity of measurement tools, recruiting participants and expert-panel members; securing the physical location for carrying out the experiments; collaborating with the principal investigator in adapting the experimental materials to the relevant context of the specific country; carrying out the experiments in collaboration with the principal policy researcher; and gathering and securing the raw data (Methodological training in experimental methods will be provided to the group researchers by the project).

(4)        Recruiting relevant PhD students and supervising their research, in coordination with the principal investigator. Integrating the PhD research plans into the project. The PhD projects will be able to also include comparative, theoretical, international, interdisciplinary, etc. – as the relevant students and their supervisors will find fit, in coordination with the PI.

(5)        The country specialist will participate in various activities (e.g. meeting, video conferences, etc.), and will take part in preparing academic publications, as specified in the project work-plan.

(6)        In the final stages of the project each country specialist will be in charge of summarizing the empirical results of the research in their respective country, will participate in the analysis of the comparative results, and the findings in other countries, including assessment of contextual differences that may be found. Finally, the country specialist will take part in formulating policy proposals as part of the concluding discussion of the project.

Please contact Talya Steiner at talyas@idi.org.il in case you are interested. 

Being Illegal is Bad for Your Health

This paper, Off the map: the health and social implications of being a non-notified slum in India
- the result of a collaboration between the Mumbai NGO PUKAR, the Harvard School of Public Health, and NYU (the lead author is Ramnath Subbaraman) - graphically illustrates what has been obvious for a long time: living in a non-notified slum is bad for your health. The article focuses on the health indicators of one non-notified slum in Mumbai, Kaula Bandar, to argue that its poor health performance compared to notified slums can be directly linked to how these residents are deprived of city resources because of their legal status. Borrowing Arjun Appadurai's phrase the residents of Kaula Bandar are essentially "citizens without a city". Specifically, the article looks at how their legal status affects these residents access to water, sanitation and solid waste removal, electricity, municipal schools, official documents (like ration cards), and compensation after disasters, as well as challenges created by forced eviction.

The article argues these residents non-notified status furthers a form of structural violence by which the Indian state is quite literally sickening and killing residents of these slums. The authors argue that India needs to fulfill at least minimum humanitarian standards (such as those applied to refugee camps) for residents in these slums. Unfortunately, the government is not currently doing even this.

Obviously, the issues involved in how to best deal with illegal slums are complicated. What is clear though is that these slums current status of not being notified is systematically killing and disempowering Indian citizens. I do think studies like this one will be important in challenging and reforming the status quo. More generally, there is a current deficit in Indian legal scholarship on how laws and rules affect those living in slums. I think such a scholarship would have to be inter-disciplinary and draw heavily not only on the public health literature (like this article), but also public policy, economics, and sociology/anthropology. It seems likely that even small rule changes could dramatically improve lives of those living in some of the worst conditions in the country.

The Fourth Estate As the State? -- A Troubling Precedent by the Delhi High Court

Guest Post by Prashant Reddy, whose views are his own.

It is no secret that several of us who watch the nightly tamasha at nine o’ clock on our news channels are itching to have the Indian media, especially the electronic media, thrown under an army of regulators and regulations. Well, the Delhi High Court appears to have answered your dreams, in a judgment which has opened the door for sweeping, almost dangerous, judicial regulation of the media.

In the case of ABCv. Police Commissioner & Ors. (W.P. (C) No. 12730 of 2005) decided on February 5, 2013 the Delhi High Court deemed the media to be a ‘public authority’ for the purposes of the Constitution of India and fined Aaj TakRs. 5 lakhs for violating the fundamental right to privacy of a juvenile victim who was allegedly sexually abused by her father. The Court also adds that the “act was a display of a prurient or morbid curiosity as proscribed in the ‘Norms of Journalistic Conduct’ laid down by the PCI.” The Delhi Police was also fined Rs. 1 lakh for leaking the initial complaint to the media.

The facts of the case are simple. The un-named juvenile in this case had lodged a police complaint against her father for the crimes mentioned above and which complaint was soon leaked to the media. The Hindustan Times and Aaj Tak in particular covered the case in some detail. While the news article in the Hindustan Times was deemed news-worthy by the Delhi High Court, the news coverage by Aaj Tak was found to have violated the juvenile’s right to privacy since the report by Aaj Tak gave enough details to identify the victim, even without revealing her name. As a result of the coverage, the victim and her mother had to relocate and go into hiding.

Normally, a victim of such intrusion, or in this case her mother, could have sued for damages in a civil law suit before a civil court. Instead the victim’s mother filed a writ petition before the Delhi High Court alleging a violation of her daughter’s fundamental right to privacy guaranteed under Article 21 of the Constitution. The issue with alleging a violation of a fundamental right is that it can be asserted only against the ‘State’ and not against a private person or in this case a private media company.

The events following the filing of the writ petition do not inspire faith in the Indian judiciary. A writ petition, which does not require any recording of evidence, as is the case in a civil suit, should not take eight years to dispose, as happened in this case. As per the electronic record of the Delhi High Court available on its website, after being registered, the petition was adjourned numerous times over the next eight years. The final arguments were heard and the case was reserved for judgment only on April 19, 2012 by Justice Vipin Sanghi.

Then amazingly, on January 8, 2013, in the immediate aftermath of the now infamous Delhi ‘bus-rape’ case, Justice Vipin Sanghi asked both the parties to reargue the case. In pertinent part, his order states “In this case, the judgment had been reserved quite sometime back on 19.04.2012. Unfortunately, it has not been possible to pronounce the
judgment on account of the heavy load of work. I, therefore, propose to
list the case, for hearing submissions of the parties, so as to refresh
myself before I proceed to deliver the judgment.” The judgment was finally delivered on February 5, 2013 i.e. eight years after the victim moved the court.   

The final judgment itself is surprising because contrary to established jurisprudence in the field of constitutional law, the Court has held that private media outlets can be sued under Article 226 because they allegedly perform a public function. In pertinent part Justice Sanghi states “In the light of the aforesaid discussion, I am of the view, that the press and the media perform a public function and discharge a public duty of: disseminating news, views & information; initiating and responding to debates; dealing with matters of current interest in the society in all fields such as politics, morality, law, crime, arts, sports, entertainment, science, philosophy, religion, etc.” He then goes on to state “Any function/activity, alleged to be in violation of such duty, would fall within the ambit of scrutiny of this court exercising jurisdiction under Article 226, especially when the same is alleged to have infringed the fundamental rights of the victim”. In doing so the High Court has virtually equated the fourth estate to the ‘State’.   

This is a surprising finding because the ‘State’ as understood in Article 12 of the Constitution, usually means either the State or Central Governments or any other public institution owned, operated or funded by a government. All of these institutions are bound by the Constitution of India and the fundamental rights contained therein. If a public institution violates a fundamental right of a person, they can be sued before a High Court under Article 226. For example if a public official passes an order against a citizen without first hearing the citizen, the citizen can sue for violation of his fundamental right to be heard. Extend this logic to the media and you open the door to a very slippery slope. Can a media outlet now be dragged to court for reporting on a person without first asking him for his side of the story? What about media outlets indulging in ‘paid news’? Can they now be dragged to the High Court and subject to fines for violating some creative interpretation of a fundamental right contained in the Constitution?

The second more interesting limb of the judgment pertains to the enforceability of the journalistic norms of conduct laid down by the PCI. The judgment is not crystal clear on whether a media outlet can now be sued for the violation of these PCI norms. The High Court, making reference to Aak Tak states “by its conduct, has acted in utter disregard and disrespect of the right of the victim of sexual abuse to privacy, recognised not only as inherent to the fundamental right to life under Article 21 of the Constitution, but also enumerated in the norms of journalistic conduct”. So, are the norms of journalistic conduct now enforceable in a court of law?

The third interesting limb of the judgment pertains to the fine and the manner in which it was calculated. The Court admits that it involved a bit of ‘guesswork’ and more importantly that it hoped that the fine would act as a deterrent against such future misconduct by the media. Mixing ‘guesswork’ with the idea of deterrence can lead to dangerous results like the Rs. 100 crore fine against Times Now for defaming a retired Supreme Court judge.  

Is this really the most efficient way to regulate the media? Can we really wait eight years for a High Court to pass judgment on a complaint against the media? Is the framework of ‘fundamental rights’ the most efficient framework to resolve complaints against the media? But then again what choice do we as a people have, when a self-obsessed media insists on the most flimsy version of self-regulation? 

The writer is at Stanford Law School and can be contacted at tpreddy@stanford.edu (All views are personal.)

The Real Price of Legislative Obstruction

In this paper published in the February 2013 issue of the Seminar magazine, I argue that legislative obstruction in India is rule-violating, costless and insurmountable, resulting in a situation akin to the 'legislative state of nature'. In this state, the normal constitutionally-mandated legislative decision rule of majority support is substituted by one requiring near-unanimity. This unanimity-based decision rule grants an effective veto to every political group with critical mass, and creates a strong inertia in favour of the status quo — a particularly distasteful political position in the deeply unequal Indian context. 

Frequent parliamentary obstruction has, unsurprisingly, led to legislative paralysis, and the concomitant muscularisation of the executive and the judiciary. Separation of powers is in tatters and parliamentary democracy seriously threatened. The article ends by suggesting that the practice of obstruction of legislative bodies can be checked only be increasing the political and financial costs of obstruction. These costs must be collective (i.e. not targeted at the obstructing members alone) and automatic (i.e. not dependent on their accrual on the politically weak office of the Speaker) in order to be effective.