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Sex Work and the Law: A Case for Nuanced Debate

23 Dec

The debate over legalization vs decriminalization of prostitution is in the public domain with reports that the National Commission for Women has recommended legalization to the Supreme Court appointed panel for rehabilitation of sex workers. The panel, formed in 2011 when the Supreme Court suo motu converted a criminal appeal relating to a murder of a sex worker into a PIL, is in the process of consulting various stakeholders.

The mandate of this panel was to recommend measures for the rehabilitation of sex workers who wished to leave sex work, and conducive conditions for sex workers who wish to continue working in the profession.

Magnitude of the issue

Estimates of the number of women engaged in prostitution have increased over the years. In 1997, a report of the National Commission of Women put it at 2 million, in 2004, a study sponsored by the Ministry of Women and Child Development estimated it to be 3 million of which 36% were children and a 2013 report on sex trafficking by Dasra, a philanthropic foundation estimated that about 20 million women were engaged in the profession. The 2013 report showed that 80% of these women are victims of sex trafficking. Most disturbingly, out of the estimated 16 million women who are trafficked, 6 million are children under 18 years of age. There is however no official estimates available since 2004 of the prevalence of prostitution.

According to the 2013 report, the prevalence of prostitution is highest in states such as Arunachal Pradesh, Andhra Pradesh, Gujarat, Karnataka, Goa, Madhya Pradesh, Maharashtra, Nagaland, Rajasthan, Tamil Nadu and West Bengal as well Union Territories like Chandigarh and Daman and Diu.

Multiple factors lead to women becoming prostitutes, the most common of which are illiteracy, lack of vocational skills, economic distress, migration, desertion by spouse, ill-treatment by parents and family tradition. Most work in miserable conditions leading to different types of diseases, depression and hopelessness. They are also faced with daily violence, constant police harassment and societal ostracisation. Given the informal economy in which they work, they also find it difficult to open bank accounts, get insurance or identification cards.

The threat of HIV/AIDS also looms large –  reports say prevalence of HIV/AIDS among this category ranged between 2% and 38% in India (globally it is about 12%). However, due to their ambiguous legal status, they are unable to get access to basic services including healthcare, education and bank accounts.

Not prohibited, but is it permitted?

According to the Immoral Trafficking Prevention Act, 1956 (ITP Act), “prostitution” is defined as the sexual exploitation of persons for commercial purposes. While it does not prohibit sex work per se, it imposes penalty for keeping a brothel, soliciting, pimping and plying the trade near a public place such as places of worship, schools and hospitals.

In 2006, India moved towards decriminalization of prostitution when it attempted to amend the ITP Act by deleting the provision that penalized soliciting and adding a provision that penalized clients of sex workers who were trafficked victims. However the Bill lapsed with the dissolution of the 14th Lok Sabha. These provisions were not well thought through given that it did not clarify the confusion about the profession’s basic legal status since provisions such as penalizing clients, prostitution in brothels and public places made it difficult for prostitutes to practice their trade legitimately.

What works?

In most of Asia, Africa and parts of the US, prostitution is illegal. Some states in Australia and New Zealand have decriminalized prostitution (no penalty for prostitutes) while Sweden, Norway, Iceland and Nepal penalize the client on the ground that prostitution is an aspect of male violence towards women. Prostitution is legal in most countries in Latin America and Europe and in some parts of the US.

The evidence however is not clear either ways. Some studies do show a correlation between legitimizing sex work and a drop in violence targeting sex workers while others show that it has resulted in increase in human trafficking.

Decriminalising – the way forward

As we re-open the debate about prostitution, Legalization in India may not improve matters given India’s lax law enforcement mechanism as well as cultural milieu. The safest option at this point may be decriminalizing the trade so that sex work per se is not legalised but sex workers are not harassed and exploited by the police, brothel owners and pimps (middlemen).   It would also reduce barriers to essential health services, education, bank accounts, insurance, voter identity cards. The government needs to play a crucial role by providing credible rehabilitation options if any of them want to opt out.

The recently enacted Criminal Laws (Amendment) Act, 2013 includes provision to penalize trafficking for any purpose. However, the government needs to strengthen its efforts to combat trafficking by dedicating resources, strengthening capacity of existing institutions and encouraging other stakeholders to leverage their own resources and expertise to address this serious problem. Considering the cross-regional and interdisciplinary nature of trafficking, there is a need to build and provide sustainable support to networks that bring together various stakeholders linking source and destination areas, frame common objectives and ensure accountability and effective delivery on the ground. 

The piece was first published on the Bharti Institute of Public Policy, ISB’s blog.

Protecting the Harassed and the Harasser

19 Jul

The Supreme Court recently passed a controversial judgment condemning ‘automatic’ arrests by police in dowry harassment cases against husbands and in-laws. The judgment has received a mixed response. While its supporters praise the Court’s strong statement against misuse of this law by women, others raise concerns over the rights and safety of victim women. While the Court rightly asks for the correct implementation of criminal procedures to avoid harassment by misuse of law, its lack of a simultaneous emphasis on the need for protection of women is problematic.

The judgment speaks of the duties of police officers while making arrests and applies to cases beyond the context of cruelty against women. Thus, one way to understand the ratio of the judgment is to look at it as a criminal procedure case divorced from its gender context. The Court merely reminds police officers of their duty under the Criminal Procedure Code (Cr.P.C.) to exercise discretion while arresting even in non-bailable and cognizable offences and to do away with the attitude “to arrest first and then proceed with the rest”. Instead of mechanically making arrests on receiving an allegation, the police should first arrive at a reasonable satisfaction as to the genuineness of the allegation based on some investigation. Under the Cr.P.C., for offences with punishment of seven or less years, like the provision on cruelty in dispute here, the police can arrest without a warrant only when it is satisfied that arrest is necessary for reasons such as preventing tampering with evidence, preventing threat to witnesses, and preventing commission of further offence. An absolute non-exercise of discretion, whether by mechanically arresting or not arresting, is problematic and may cause unnecessary harassment and humiliation to the arrested person. The judgment requires police officers to forward to the Magistrate not only their reasons for arrest, but also reasons for their decision not to arrest, in the latter case within two weeks from the date of institution of the case. Failure to follow these guidelines may render police officers liable for both departmental action and contempt of court proceedings.

While the operative part of the judgment is written largely in such criminal jurisprudence terms, presenting the judgment in this gender-neutral manner will rob it of its true context and hide its possible implications. Even while the direction is to police officers, the Court is more concerned about harassment by “disgruntled wives” than by the police. The Court emphasizes how women are misusing the criminal provision that was intended to protect them from cruelty by husbands or his relatives, and causing harassment through arrests not only of the husband, but also his old or distant relatives, whether male or female. The Court also notes that marriage is a revered institution in India and seems to lament the increase in matrimonial disputes in the country.

The exclusive focus on misuse instead of use of the provision makes the apparently harmless verdict reiterating the criminal procedural law a questionable and unbalanced one. While the misuse of anti-dowry provisions may be common, but even more widespread is the incidence of dowry-related violence. In its attempt to “maintain a balance between individual liberty and societal order”, the Court totally ignores the concerns of women who may actually be victims of harassment. Patriarchal norms normalizing domestic violence, lack of support for women who fight against such violence and the private domain within which the abuse takes place already make legal remedies difficult to access for many women. In this context, valid concerns were raised around the judgment’s implications for a woman deciding whether or not to use criminal law to her rescue and for the safety of a woman who decides to use criminal law but is not able to procure arrest of the accused persons.

There is a need to take on board concerns both regarding protection of women from domestic violence and regarding harassment caused by arrests of falsely accused persons. While the Supreme Court takes care of the latter, it ignores the former. As a matter of fact, the law already provides this protection in the form of the Domestic Violence Act (DVA). The definition of “domestic violence” under the Act covers physical, mental and economic abuse and includes violence related to dowry demands. It further places a duty on a police officer who receives a complaint of domestic violence to inform the aggrieved woman of her rights to receive protection under the DVA. Thus, even where the police may not arrest the accused persons immediately, they may still assist the complainant woman to use the DVA machinery and seek protection and other reliefs.

While the Court reiterates Cr.P.C. provisions to curtail harassment by misuse of dowry laws, it surprisingly misses out a mention of DVA that can simultaneously be used to provide protection to abused women. The police officers need to be reminded of their duty under both these laws. One can hope that this slip by the apex Court will not result in dilution of the actual exercise of their duty under the other law.

Putting Carts Before Horses. And How?

9 Apr

This post was first published by Humorlessindianlawyer.blogspot.in on April 8, 2014.

Imagine,

living in India with a Parliament that makes laws, an executive that implements these laws and a court system that interprets these laws. Now, imagine Parliament making the following law:

Right to regulate all Economic Activities Completely Act, 2014

Section 1. This Act applies to all of India. Except J&K, because we don’t feel like it.

Section 2. The central government will have the power to ban any economic activity if: (a) it is useful, (b) people can make money from it, (c) it increases the work of government officers, or (d) the concerned officer is in a bad mood that morning.

Section 3. Yes, we really mean business. This time.

Section 4. Notwithstanding thereto anything therefore whereas provided that “economic activity” includes sand mining, coal mining, writing books or, buying, selling, making, eating, drinking, consuming, excreting, advertising any product or service, but does not include the buying or selling of votes.

Section 5. The central government can make rules for the purpose of implementing this Act.

Section 6. This Act will become applicable on the date the central government notifies it in our super cool official gazette. The central government can selectively notify some sections of this Act on days it rains.

Continue imagining,

some super-zealous government officer notifies Section 5 of the Act, but forgets to notify any other section. So out of the entire Act, only Section 5 is in force and applicable law. Thank god, you may say. But the central government goes ahead and starts making rules banning sand mining.

But how? Sections 2 and 4, the two most bad-ass sections have not even been notified yet! People challenge this stupid Act and the rule made under it in the courts.

Dreams get real

In 1988, the Indian Supreme Court made this nightmarish dystopia a reality. In Ajay Canu vs. Union of India the Supreme Court was hearing an appeal from the High Court of Andhra Pradesh. The petitioner had challenged a rule by the state of Andhra Pradesh that required all persons driving motor cycles and scooters to wear helmets.

One of the issues the petitioner raised was that this rule was made under Section 85-A of the Motor Vehicles Act that had not yet been enforced (the other issue was that the Act violated the freedom of movement under the Constitution). Without the section in the parent Act coming into force, no rule, surely could be made under that section? The court swatted away this contention in a majestic display of its wisdom.

The Court pointed to Section 91 of the Motor Vehicles Act. Section 91 gives the government the power to make rules for implementing the Motor Vehicles Act (Importantly, while Section 85-A had not been enforced, Section 91 had been). The Court said it would proceed on the assumption that Section 85-A had not been enforced. However, even if it were not enforced, Section 91 gives the power to the government to make the rules requiring drivers of motorcycles to wear helmets!

Lets re-state this: The Section that gives the power to require drivers of motor cycles to wear helmets has not been enforced. The Section that gives the government the power to make rules for implementing this section is in force. Without the specific power, the rule-making power is useless, one would think. Section 91 specifically states “The … government may make rules for the purpose of carrying into effect the provisions of this chapter…“. And yet, the Supreme Court says it is ok to make rules enforcing a Section that is not even applicable law yet!.

Even worse, this case concerned a challenge to the fundamental right to movement. The Supreme Court held that the rules made by the Andhra Pradesh government did not violate this fundamental right. The net effect of this decision is that the government can impose restrictions on fundamental rights (including, on the freedom to carry on trade and commerce, say, by banning sand mining) by passing a law, and notifying only one section that states that the government can make rules to implement this Act!!

This of course, works brilliantly if you are the government. Suppose the law that is used to do all this provides a right to challenge the government order. Simple. Don’t notify the useless giving-losers-a-chance-to-whine section, and you are good to go!

RTI Amendment: Questioning the largesse of retrospective laws.

12 Aug

On June 3, 2013, a full bench of the Central Information Commission (CIC) passed an order declaring six political parties to be public authorities[i], and consequently bringing them under the ambit of the Right to Information Act, 2005 (RTI/ Act). Not unexpectedly, the Centre was quick to react. The UPA and the opposition were quicker to find unanimity on this issue. The media is rife with reports that the Cabinet has approved the introduction of an amendment to the RTI granting immunity to political parties from the Act.[ii] This episode echoes the numerous instances when the Parliament has resorted to retrospective amendments for nullifying the effect of inconvenient judicial pronouncements. It also  reiterates the vulnerability of judicial pronouncements to the legislature’s power to turn the clock back in time. In this post, I trace the checkered history of retrospective amendments, and question the Indian legislature’s aggressive tendency of overruling bothersome judicial pronouncements by large-scale retrospective amendments to the law.

At the outset, it is nobody’s case that the legislature cannot enact laws having retrospective effect, for the power to do so is bestowed on it under the Constitution and fortified by numerous judicial pronouncements.[iii] This post also does not seek to argue for or against political parties being covered under the RTI. What this post questions is the righteousness of an obstinate legislative tendency to wriggle out of judicial pronouncements by making retrospective amendments, especially when redress against an unjustifiable order is available through appeal to a higher forum.

The proposed amendment of the RTI refreshes one’s memories of the numerous election validating laws of the 1970s that were enacted retrospectively for political convenience. One is reminded of the Rajasthan State Legislature’s act of retrospectively amending the definition of office of profit under the The Representation of the People Act, 1951 (RP Act) as applicable to Rajasthan. The amendment was made to override the judgment of the Rajasthan High Court that invalidated a candidate’s election to the Legislative Assembly on the ground that he held an office of profit as defined under the RP Act as it stood at the time of the election. The RTI amendment also reminds one of the landmark judgment of the Allahabad High Court invalidating Indira Gandhi’s election to the Lok Sabha on the grounds of her having engaged in electoral malpractices as defined under the RP Act, as it stood at the time of the election. Indira Gandhi appealed to the Supreme Court against this judgment. During the pendency of the appeal, the Congress-controlled Parliament passed a law amending inter alia the RP Act, so as to obviate the grounds that formed the basis of the Allahabad High Court judgment. The rest, as they say, is history. In both these cases[iv], the Supreme Court respected the unbridled power of the legislature to enact retrospective laws notwithstanding their effect on judicial pronouncements.[v]

Retrospective amendments are most commonly known for neutralizing the effect of anti-Government tax rulings. Of recent prominence is the retrospective amendment that sought to override the Supreme Court’s judgment in the Vodafone dispute, and bring offshore share transfers within the tax net. The amendment was a fall-out of a 2 year-long battle that the Government waged against Vodafone for recovering taxes in respect of an offshore share-sale transaction, and ultimately lost.  In the tax regime, one will recollect numerous such retrospective amendments (some of them turning the clock as many as 30 years behind) that have altered tax liabilities of assessees. For instance, the amendment that brought renting of immovable property within the service tax net nullifying the judgment of the Delhi High Court in the Home Solutions case[vi]; the amendment that retrospectively taxed fees paid for services rendered abroad seeking to defeat the Supreme Court judgement in the Ishikawajma-Harima case[vii], the amendment that nullified the Supreme Court’s decision which held that once a price-classification list was approved by the Excise department[viii], the department could not re-open the matter for levying additional excise duty, to name only a few.

Legislative power to amend laws retrospectively for obviating the effect of a judgment has been justified on several grounds, namely the legislature being empowered to cure defects and infirmities in the law, absence of restrictive language in the plenary powers conferred on the legislature under the Constitution, and the inability of lawmakers to envisage every possible situation that the law may need to address. Often, the power of retrospective legislation has been used to plug genuine loopholes in welfare legislations. At the same time, there is no gainsaying the unforeseen consequences imposed on those who are targeted by retrospective laws, often on those who have fought until the highest court of the land to get their due under the law prevalent at the relevant time.

Even if one were to give the legislature the benefit of doubt for retrospective amendments to taxing statutes as they generally help the exchequer, the question assumes greater significance in the context of retrospective amendments made for political convenience. Particularly so, when the amendment is intended to benefit the amendment-makers alone. For instance and at the risk of digressing from the main issue of retroactivity, has the Government followed the regular process in connection with the potential RTI amendment that it would ordinarily follow whilst enacting any other law? Have consultations been held with all stakeholders? The only argument put forward by the Centre justifying the exemption of political parties from the RTI is the potential of its abuse. However, the legislature’s power to enact retrospective laws has equally been challenged in the past on grounds of potential abuse. This challenge has failed and Courts have repeatedly held that potential for abuse of a law cannot be a ground of challenge.[ix] Does the same principle not defeat the Centre’s argument for exemption of political parties from the RTI?

With the legislature aggressively amending laws retrospectively and with many such amendments being triggered by inconvenient judicial pronouncements, it is perhaps time for lawmakers to introspect on the generous use of its retrospective powers. Let me spell out why – because it will lend much predictability to the Indian legal regime, enable citizens to plan their affairs with more certainty, enhance confidence in the future of the regime, and more importantly, it will restore the sanctity of judicial pronouncements.


[i] The CIC declared the Indian National Congress/ All India Congress Committee (AICC), Bhartiya Janata Party(BJP), Communist Party of India (Marxist) (CPM), Communist Party of India(CPI), Nationalist Congress Party(NCP) and Bahujan Samaj Party(BSP) to be public authorities under the RTI.

[iii] Article 245 of the Indian Constitution that empowers the Parliament and State Legislatures to make laws for the whole of India and the concerned State respectively does not contain restrictive language. The only exception to this can be found in Article 20 of the Constitution which prohibits the conviction or penalization of a person under a retrospective law.

[iv] See Kanta Kathuria v. Manak Chand Surana (1969) SCC 268 and Indira Gandhi v. Raj Narain (1975) 2 SCC 159.

[v] In Indira Gandhi v. Raj Narain (Supra Note iv), the Supreme Court upheld retrospective amendments to the RP Act, and struck down certain retrospective amendments made to Article 329A of the Constitution. However, the latter amendment was struck down on grounds other than retroactivity.

[vi] Home Solutions Retail India Ltd v. Union of India and Ors. 2009-TIOL-196-HC-DEL-ST

[vii] Ishikawajima Harinia Heavy Industries Ltd. v. DIT, Mumbai, (2007) 3 SCC 481

[viii] Collector of Central Excise, Baroda v. Cotspun Ltd. 1999 (113) ELT 353 (S.C)

[ix] In Kanta Kathuria v. Manak Chand Surana (Supra) responded to a challenge to the legislature’s powers to enact retrospective amendments overruling judicial pronouncements, as under:

“The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State Legislature.”

The narrative of independent regulators

2 Aug

This post first appeared as an article on Bar and Bench on July 31, 2013. The original can be accessed here.

 

Those following important policy developments recently will notice numerous announcements proposing new “independent” regulators. Beginning with SEBI in the early 1990s, and TRAI in the late 90s, a number of independent regulators have been set up. These include the Central and State Electricity Regulatory Commissions (CERC and SERCs respectively), the Competition Commission of India (CCI), the Insurance and Development Regulatory Authority of India (IRDA), the Pension Fund Regulatory and Development Authority (PFRDA), the Airport Economic Regulatory Authority (AERA), the Petroleum and Natural Gas Regulatory Board (PNGRB) and the Tariff Authority for Major Ports (TAMP).

Recently, there have been proposals for a biotechnology regulator, a real estate regulator, acoal regulator, and even a roads regulator. In the financial sector, the report of the Financial Sector Legislative Reforms Commission (FSLRC) recommends an overhaul of the financial sector regulatory architecture by merging some existing regulators, and creating new ones. The most often talked about rationale for the creation of independent regulators is to ensure greater competition in a given sector, and to create a level playing field for different entities competing in that sector. This fairly regulated competitive market, it is argued, will be of greater benefit to consumers than the existing regime.

While this article does not seek to contest this above-mentioned premise of promoting competition, we need to examine whether the laws and processes creating these independent regulators actually create “independent” regulators who also remain accountable to Parliament. Since many of these regulators create appellate tribunals, or provide for appeals to High Courts and the Supreme Court, this article also discusses the implications of this regulatory sprawl on the existing judicial system. Lastly, the rationale for the creation of independent regulators needs to be debated carefully before more and more regulators are established. I argue that the long-term implications for the establishment of such a large number of sectoral regulators are something lawyers, policy experts and administrators need to examine carefully.

Independence and performance

Independence of regulators from the government is desirable to enable them to perform without political interference. This is especially important in India where the state is a major market participant in many economic sectors. However, not all regulators are equally independent, since the laws establishing them do not follow a uniform standard. Additionally, these laws rarely have the right mix of independence and accountability; a lot of these issues arguably stem from poor legislative design.

To be truly independent from the government, not only must the regulator be an independent statutory authority, it must also be financially and administratively independent from the government. The executive cannot be allowed to either interfere, or arm-twist the regulator to do its bidding. More importantly, since the onus of meeting the regulator’s objectives lies with the regulator, the government cannot be allowed to have unbridled discretion in how the regulator hires and manages personnel, and uses its finances.

For example, in 1999, TRAI, after holding extensive consultations issued its first Tariff Order (TO), a landmark for infrastructure regulatory agencies in India as it attempted to set tariffs to reflect costs more closely. After an uproar in Parliament, and opposition from other quarters, the Department of Telecommunications sent TRAI a 3-line note directing it to put its order on new phone rates on hold. TRAI refused. In response,

 

“[T]he government issued two gazetted notifications … The first related to salaries, allowances and conditions of service of TRAI officials. Here, instead of setting rules for the chairman of TRAI, it made different rules depending on if he were a retired judge of the Supreme Court, a retired chief justice of a high court or if he were a serving judge. It also cut down on the allowances for foreign travel [of TRAI], ostensibly in the wake of a recent Comptroller and Auditor General report.”

(Sourced from here)

Laws establishing regulators must therefore, be drafted to protect against such instances. At the same time, there must also be mechanisms to ensure regulators remain accountable to Parliament. The CAG for example, set up an institute in Jaipur to train officers in environmental audits. As a constitutional authority, the CAG is arguably responsible for auditing the government’s expenditure. While environmental audit may be desirable in itself, it is debatable whether such audits come within the CAG’s existing mandate.

The report of the FSLRC recommends physical, legal and administrative separation of the regulator from the government, implying that regulators must have independent infrastructure, personnel. With regard to financial independence, the FSRLC recommends independent sourcing of finances from sources such as fees. With regard to strengthening accountability, it recommends that regulators (a) be given clear, precise regulatory objectives, (b) explain their regulatory actions to the general public, and regulatory changes be made after prior consultation with the public, and (c) report to Parliament on how they fared on pursuing their regulatory objectives, and the outcomes achieved.

Appellate Mechanisms

Independent tribunals, or some other appellate mechanisms are usually created to entertain appeals or disputes from orders of regulators. SEBI has SAT, the CCI has COMPAT, TRAI has TDSAT, the CERC and SERCs have the Appellate Tribunal on Electricity (APTEL), IRDAs appellate forum is SAT, appeals from PNGRB go to APTEL, and so on. While tribunals perform an adjudicatory function, and are thus not as prone to interference from the executive as the regulators, their relationship with the executive also needs to be looked into.

One such example is the use of APTEL’s use of its suo moto powers. In November 2011, APTEL passed an order exercising its suo moto powers, directing all SERCs to revise electricity tariffs regularly. Under the Electricity Act, 2003, all SERCs are mandated to revise electricity tariffs regularly on the basis of documentation provided to them by state electricity utilities. This was however not being done by most SERCs, and electricity utilities continued to suffer losses as tariffs remained low compared to the cost of producing and supplying electricity.

Significantly, APTEL exercised this suo moto power on the basis of a letter from the Ministry of Power complaining that most state distribution utilities had failed to file annual tariff revisions in time, and as a result, tariff revision has not taken place for a number of years in many states. It also stated that SERCs have not revised tariffs suo moto, and as a result, state distribution utilities are in poor health. While the final order was not an improper exercise of APTEL’s power, this instance can be construed as one where the central government was attempting to regulate the functioning of SERCs (over which it otherwise has no jurisdiction) by writing to APTEL.

The increasing specialization in the administration of justice through the establishment of sector specific tribunals also has repercussions for the broader system of administration of justice. As most legislations establishing these tribunals provide for appeals to the Supreme Court, such laws usually insist that the chairpersons or members of the tribunal, or both be (a) retired Supreme Court judges, (b) serving Supreme Court judges, (c) High Court chief justices, or (d) judges who have served in High Courts for a particular length of time. This arguably creates a high level of expertise in the dispensation of justice in these tribunals.

However, there is no mechanism by which members serving in such tribunals can be re-inducted (if not past the age of superannuation) into the mainstream judiciary. This arguably creates a situation where technical expertise in specific sectors is not channelized back into the mainstream judiciary. The creation of such a two-way process may become imperative in the long run if the increasing tribunalization of justice persists. The present system of promotion and induction into the judiciary emphasizes experience in practicing law or administering justice in different courts and on varied subjects. If tribunals are becoming an important part of the judicial landscape, it is only logical that experience as members of such tribunals also be given weight while considering appointments to the higher judiciary. This would also create a virtuous cycle where good judges would consider serving on tribunals for a period of time before returning to their service in the higher judiciary.

 

Rationale for independent regulation

The last, but perhaps the most significant issue remains the rationale for creating independent regulators. While in some cases there is a need for independent regulation, in some other cases the need for an independent regulator is less easily justifiable. The recent road regulator being proposed is one such example. The need for a regulator has been felt within the sector due to the large number of stalled road projects throughout the country. It was felt that the regulator should deal with “tariff setting, toll policy and modifications, compliance of service levels (for commuters), address public concerns.” The government being one of the parties to such contracts, cannot be the proper entity to mediate such disputes.

None of these functions i.e. ensuring competition, fair-play, and consumer protection however, are those that are usually entrusted to an independent regulator. In other words, the re-negotiation of contracts, regulations regarding toll collection, and other aspects of highway construction are not functions that need to be entrusted to a regulator in the usual course of events. These are not activities, the performance of which, enhances fair competition within the sector. The resolution if these issues may make the development of roads more efficient, but these functions are not those assigned to independent regulators. An official from the Planning Commission has stated that, “In case of roads, everything is decided in the contract itself, and be it the toll rates, other tariff. So, what do we need a regulator for?” Some commentators are justifying the need for such a regulator since the executive has failed to resolve these issues in an efficient and impartial manner.

We therefore need to carefully examine at what point the creation of an independent regulator is in effect an abdication of an essential state function. Many such state functions are questions of policy. They require political negotiation and decision-making. In essence they are policy issues, not regulatory ones. The state cannot abdicate such functions and hand them over to an unaccountable, unelected regulator because it has been unable to perform these functions effectively.

While there are no easy answers to these issues, they do need careful deliberation. There is therefore a necessity for ensuring that while attempts to promote competition within the economy are encouraged, the creation of new regulators and their linkages to the rest of the legal system are thought through.

 

 

Mumbai Dance Bar Ban: Differing Perspectives

30 Jul

In 2005, the Government of Maharashtra banned dance performances in eating houses, permit rooms and beer bars through an amendment in the Bombay Police Act, 1951. The ban was recently struck down both by the High Court of Bombay and the Supreme Court of India as unconstitutional.

The High Court and the Supreme Court held the ban to be violative of Article 14 (right to equality) and Article 19(1)(g) (right to practice any profession or occupation). The courts observed that the amendment unreasonably prohibited dance performances in some establishments while permitting them in other establishments like hotels starred three and above. This classification seems to be based on elitist presumptions about the morality of people with lesser incomes and was held to be violating the right to equality. The courts also noted that the prohibition on dancing forced many establishments to shut down and rendered many women workers unemployed. Contrary to its purpose, the law forced many dancers to take up prostitution to earn their living. Thus, the law infringed upon the guarantee under Article 19(1)(g). Now, the state of Maharashtra is likely to revert to the licensing system for regulation of dance bars.

Below, I try to put the debate around prohibiting/regulating dance bars within the framework of various broader perspectives, not necessarily drawn from the judgments, which might help in a better analysis of this debate. My purpose is not to give a definite answer on this issue, but to separate and present the differing strands that get implicated here. Here are the different arguments:

Morality: Dances in beer bars and similar places are obscene and vulgar. They not only degrade women, but also lead to an increase in other immoral activities like prostitution and alcoholism. It can be said this argument belongs to the ‘Conservatives’, though I am wary of using this classification as our prejudices against being a ‘conservative’ may prevent us from fairly appreciating the merits of the argument.

Equality: Performances in dance bars are derogatory to women because they commodity and objectify women. They also often involve minor girls who are trafficked, exploited and forced into dancing in bars. This view is likely to be advocated most strongly by radical feminists who find the root of sex inequality in sexual exploitation of women and argue also against prostitution and pornography on these grounds. They deny that women choose these occupations with their ‘free consent’. This argument opposes bar dancing as being degrading to women not for reasons of protection of public morality, but due to concern for equality of women.

Practical offshoots: Allowing dance bars to flourish may enhance the occurrence of other undesirable activities or hinder implementation of other laws. For example, dance bars are seen as hubs of prostitution and human trafficking. They increase the vulnerability of minor girls and women to sexual exploitation. They may also lead to increased alcohol addiction and related crimes. These practical concerns call for regulation or banning of dance bars.

Right to work and livelihood: All persons have the right to work which includes women’s right to dance in bars. Banning bar dancing not only took away a form of employment, but also forced many bar dancers to take up prostitution to sustain themselves and their families. The ban also forced many establishments to shut down altogether, affecting the livelihood of other workers employed there.

Autonomy: Autonomy feminists seek respect for the agency or choice of women in entering professions such as bar dance, sex work or pornography. They reject the view that women do not take up these activities with their free consent. It is paternalistic to label what is the free choice of a woman as force or exploitation.

Free expression: Dance is a form of expression and prohibition on dance performances in certain establishments is an excessive restriction on the freedom of speech and expression of bar dancers.

Elitism: Selective ban on dances of certain types or in establishments most frequented by people belonging to certain classes or having lesser incomes is based on elitist assumptions about their morality. It is assumed that similar dance performances in establishments like five star hotels do not lead to illegal or immoral activities. It may also imply greater respect for the autonomy of women dancers of a particular class while viewing other women dancers as victims of exploitation. Such bans may stem from beliefs regarding the need to regulate the conduct of certain classes of people. Based on the position on the wider debate on bar dance, this argument may advocate either across-the-board increase or across-the-board decrease in the regulation of dance bars.

This is not an exhaustive set of views on the issue of bar dancing, but I have tried to cover a wide ground. I hope this puts the debate in a wider perspective and helps us avoid conflating the different arguments when responding to the debate.

Ordinance Route

26 Jul

This article first appeared in Frontline on July 24, 2013, and can be accessed here

 

In my article, I examine the true intent behind giving the executive the power to promulgate ordinances, and how the use of this power has been at complete variance from such original intent. The misuse of this power over time is a strong incentive to examine ordinance making power as it currently exists. I argue that having strong standards of judicial review would be one tool to help misuse of this power:

 

“Ordinance-making power is not a new feature added to the Indian Constitution. Articles 42 and 43 of the Government of India Act, 1935, gave the same power to the Governor General. Members of the Constituent Assembly, having experience of abuse of such power, were understandably wary of including the same in the Constitution. Both Hriday Nath Kunzru and Professor K.T. Shah called for restricting the executive’s power to promulgate ordinances through greater oversight by legislatures. They were, however, overruled by Dr B.R. Ambedkar, who stated that ordinance-making powers were necessary since existing law might be deficient to deal with a situation “which maysuddenly and immediately arise”. According to him, the only solution was to “…confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law…” when the legislature was not in session.

 

It is clear that the framers of the Constitution envisaged ordinance-making powers only for unforeseen, sudden situations and where the executive required additional legal sanction to address the situation. The executive, however, decided to completely disregard this requirement of necessity for immediate action. According to data furnished in the Statistical Handbook of the Ministry of Parliamentary Affairs, more than 41 ordinances were promulgated during the term of the first Lok Sabha itself. Indeed, in the pre-Indira Gandhi period, that is, before 1966, more than 75 ordinances were passed by the Central government. The necessity of taking immediate action by promulgating ordinances has remained debatable at best through the years.”

 

Certain instances show how the use of this power has been at complete variance from the requirements of immediate necessity:

 

“The Telecom Regulatory Authority of India (TRAI) was created in 1997 first by an ordinance and then by an Act of Parliament. The Minister in charge stated that the ordinance route was taken since “…we were facing difficulties in attracting private investment without an authority like the TRAI. Private investors… were not convinced about our ongoing processes of privatisation and liberalisation.” Important as it is to send out a signal of commitment towards a particular government policy, in this case liberalisation of the telecommunications sector, it is hard to make the case that had immediate action by promulgating an ordinance not been taken, private investment in the telecommunications sector would never have happened.

Similarly, the Electricity Regulatory Commissions Ordinance was promulgated on April 25, 1998, one day before the government of the day decided to convene the next session of Parliament. The National Commission for Minority Educational Institutions (Amendment) Ordinance, 2006, was promulgated in January 2006, even though Parliament was to convene from February 16, 2006. In both cases, no satisfactory reason was given for promulgating these ordinances in haste…

..The National Tax Tribunal Ordinance was promulgated in 2003. As per the parliamentary debate on the National Tax Tribunal Bill, the ordinance was promulgated because various committees had recommended that such a tribunal be established, and as “…huge revenue is blocked in litigation because of pendency of appeal and reference is before the High Court, which has adverse affect on the national economy”. As one Member of Parliament pointed out, though a number of months had elapsed since the promulgation of the ordinance, no tribunal had been established at the time of the debate and no cases referred to it.”

 

These instances clearly reveal a misuse of ordinance making power that urgently needs course-correction.

Electoral Reforms, Vol. I: Recent developments and issues

15 Jul

Crime and Punishment Parliament

This post is the first installment in a series on electoral reforms.

Last week was a blockbuster one for election law, bringing us not one, but two Supreme Court decisions with implications for convicted criminals, political candidates, legislators, and combinations thereof. On Thursday, the Supreme Court ruled that individuals lodged in jails or in police custody cannot contest elections. Earlier in the week, the same bench struck down a provision in the Representation of the People Act that protects legislators convicted of crimes from disqualification for three months from the date of conviction.

These decisions are timely. Upon taking office this past January, Law Commission Chairman Justice DK Jain stated that electoral reforms were going to be a top priority. Last month, the Commission appeared to make good on that promise releasing a [very brief] Consultation Paper on Electoral Reforms, and a notice soliciting feedback.

While any collective soul-searching into the deficiencies of election statutes is a positive development, it’s worth noting that this process has repeated itself many times in the recent past.  Here’s a (possibly non-exhaustive) list of efforts since 1990: [i]

  • Goswami Committee on Electoral Reforms (1990)
  • Vohra Committee Report (1993)
  • Indrajit Gupta Committee on State Funding of Elections (1998)
  • Law Commission Report on Reform of the Electoral Laws (1999)
  • National Commission to Review the Working of the Constitution (2001)
  • Election Commission of India – Proposed Electoral Reforms (2004)
  • The Second Administrative Reforms Commission (2008)
  • Core Committee on Electoral Reforms (2010)

Taking note of issues from election financing to media regulations, the newest Law Commission paper declares the “criminalization of politics” to be its primary concern. Indeed, there is nothing new about the pervasive feeling that Indian Parliamentarians are a particularly compromised lot. In its 1993 report – part of which was deemed so explosive that it was never published – the Vohra Committee observed that “The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country” and that “some political leaders become the leaders of these gangs/armed senas and over the years get themselves elected to local bodies, State assemblies, and national parliament.”[ii]

As this week’s Supreme Court decisions have highlighted, it is this last phenomenon – membership in Parliament – that many consider the most vexing manifestation of the mixing of criminal and political activity. Importantly, this week’s Supreme Court rulings do not resolve the issue. That’s because, while the Representation of People Act and this week’s decisions bar certain convicted criminals from holding office,  the more intractable problem is what to do about the many MPs with criminal charges pending, who have not yet been convicted of any crime and are free on bail.  According to a 2009 report of the Association for Democratic Reforms, 1158, or 15%, of all candidates contesting in the general election, had criminal charges pending against them. This included almost a third of all candidates in Bihar, as well as 27% of Congress candidates, 27% of BJP candidates, and 43% of ADMK candidates nationwide. During the election 162 MPs with criminal charges pending were elected (up from 128 in 2004), including 76 involved in “heinous offences such as rape, dacoity, and murder” (up from 58 in 2004).[iii]

The BJP and Congress each sent 42 MPs with criminal charges pending to the Lok Sabha. Of those MPs with serious (defined more broadly than heinous) IPC counts against them, there were 52 BJP, 31 Congress, 31 SP, 18 BSP, and 23 JD(U) MPs, as well as 9 MPs each from the ADMK, NCP and RJD.[iv]

The Law Commission’s recent Consultation Paper highlights two ways in which this could be addressed. Under the status quo contained in section 8 of the Representation of the People Act, MPs convicted of certain crimes will be disqualified for a period of time, based on the severity of the offence. The first alternative presented by the paper is that an MP or candidate could be disqualified much before conviction, when charges are framed by a court.  The second alternative is the creation of a quasi-judicial tribunal that would “travel beyond the domain of criminality” and “evaluate the fitness of a candidate on the touchstone of certain enumerated standards.” In other words, not only criminal charges, but also complaints alleging a much broader spectrum of misconduct could lead to disqualification. Such a tribunal would issue orders disqualifying candidates based on the “preponderance of probability” rather than proof beyond a reasonable doubt.

Similar proposals have been made in the past as well.[v] The Election Commission and the Second Administrative Reforms Commission proposed a similar solution to the first alternative offered by the Law Commission. That proposal also contained provisions to prevent abuse. Only candidates/MPs accused of crimes punishable by 5 years or more of imprisonment could be disqualified upon having charges framed against them. Further, charges filed within six months of an election would not lead to disqualification.

There are a few striking features shared by these proposals. The first is the significant confidence they place in the capabilities of both judges and quasi-judicial tribunals to fairly adjudicate highly politicized questions quickly and without the format of a trial. The second is the tension between holding accused politicians accountable and the enormous potential for abuse. While it may be a popular idea, barring candidates only accused (and not chargesheeted or convicted) of crimes seems to be recognised as a bridge too far.  Yet even the Law Commission proposals would go much further than Thursday’s ruling, which itself leaves plenty of room for abuse. In an editorial on Friday, The Hindu called that decision “a remedy worse than the disease,” noting that, “All that politicians in power now need to do to prevent rivals from contesting an election is to ask the police to file a case and effect arrest.”[vi]

One proposal that might avoid such pitfalls was proposed by The National Commission to Review the Working of the Constitution, in 2001. The Commission proposed the establishment of Special Courts to decide cases against candidates within six months. Candidates against whom charges are pending would be entitled to have their cases heard in the special courts, which would determine if a plausible prima facie case had been made against them or if the case was frivolous. BJD MP Jay Panda recently introduced a Private Members’ Bill in the Lok Sabha that would set up a fast track court within 90 days of charges being registered against an elected official.

The third striking feature of these proposals (and the whole discussion) is that within them lies a certain distrust of the electorate. Any such rule, by its very nature, assumes that, by choosing to elect MPs in criminal trouble, the electorate is either (1) unwise or (2) powerless to prevent those results. One problem with this (aside from its paternalism) is that it is empirically shaky. The ADR report states that in 2009, “Of the 608 candidates with the most serious criminal cases against them, only 76 won. The remaining 532 were rejected by the voters.”[vii] That is a win rate of only 12.5%. In ADR’s list of the top 20 candidates with criminal cases pending against them, all but two lost.[viii]

Finally, it is hard not to come away from the discussion wondering why there is such little acknowledgment of the much larger and more urgent problem at work here. That is, of course, the backlog of cases in the courts and the routine denial of speedy justice that plagues the entire judicial system. After all, if criminal cases were adjudicated more quickly, the existing provisions of the Representation of the People Act might well be enough. In 2009, Chief Justice A.P. Shah of the Delhi High Court said in a report that “it would take the court approximately 466 years” to clear the 2,300 criminal appeals cases pending in that Court alone.[ix] In 2011, there were over 72 lakh cases pending in the entire country.[x] The tainted state of the Lok Sabha is the most visible and most embarrassing consequence of this state of affairs, one that arguably affects each individual citizen far more profoundly than the election of criminal MPs.

US v. Windsor: A Case for Same-Sex Marriages?

9 Jul

The US Supreme Court recently gave a landmark decision in US v. Windsor holding Section 3 of the Defense of Marriage Act, 1996 (DOMA), which defines “marriage” as excluding same-sex unions, unconstitutional. Here’s a quick summary of the judgment. The full 77-page judgment is available here. The decision also contains some lessons for the treatment of homosexual conduct in India, as this post highlights at the end.

Background
The case began with a tax dispute. Two women residents of New York, Edith Windsor and Thea Spyer, got married in Ontario, Canada in 2007. Their marriage was recognized in the state of New York. Spyer died in 2009 leaving her entire estate to Windsor. Windsor paid $3,63,053 as estate taxes but claimed a refund seeking federal estate tax exemption for surviving spouses. This is where the controversial legislation DOMA steps in. Because DOMA excludes same-sex partners from its definition of “marriage” and “spouse”, the tax refund was denied. Thereafter Windsor challenged the constitutionality of DOMA.

Judgment
The District Court, the Court of Appeals as well as the Supreme Court declared Section 3 of DOMA unconstitutional. In a 5:4 majority decision, the US Supreme Court held DOMA as violative of the Fifth Amendment of the US Constitution. While the judgment also involved jurisdictional issues, I will deal only with the judgment on merits here.

The majority court noted that regulation of marriage has historically been within the authority of states. DOMA departs from the tradition of federal government deferring to this state authority. Although the statute does not prevent states from enacting laws allowing or providing benefits to same-sex marriages, DOMA holds a wide reach and extent by laying down a comprehensive definition of marriage for purposes of all federal laws. It affects over 1000 federal laws on various aspects involving marital status including social security, housing, taxes, crimi¬nal sanctions, copyright and veterans’ benefits.

The state of New York, by allowing same-sex marriages, confers dignity and protection on same-sex couples to enjoy their liberty. But the federal government has imposed restrictions and disabilities on them through DOMA. Fifth Amendment’s Due Process Clause protects liberty, which includes equal protection of laws. DOMA singles out and injures and degrades the very class of persons that the state considers entitled to recognition and protection, violating basic due process and equal protection principles.

The court observed that both purpose and effect of DOMA are to impose disadvantage, inferior status and stigma upon same-sex couples, whose marriage has been recognized by the state. Looking at the legislative history and title of DOMA, the majority noted that it is based on moral disapproval of homosexuality and aims to defend the heterosexual marriage institution. Further, the purpose of DOMA was to discourage state laws allowing same-sex marriages and to restrict the freedom and choice of lawful same-sex couples. DOMA treats same-sex unions deemed lawful by states as second-class marriages and also humiliates the children raised in same-sex unions. The majority concluded that the principal purpose and effect of DOMA are to impose inequality. And no legitimate objective overcomes this purpose and effect.

Thus, the court held that Section 3 of DOMA violates Fifth Amendment of the US Constitution. Notably, the court explicitly denied deciding whether DOMA’s intrusion violates the principle of federalism. The majority also cautioned that the judgment is confined to same-sex marriages that have been recognized as lawful by a state.

Dissents

Four of the nine Justices expressed their dissents and held that DOMA is constitutional. The major points of dissent from the separate dissenting opinions are summarized here.

The judges pointed out that it is not clear what the majority’s conclusion of unconstitutionality is based on. There are three possibilities:

(1) Federalism. While the majority does refer to federal government’s departure from deferring to state authority, it itself denies basing its judgment on the grounds of violation of federalism.

(2) Equal Protection. If the decision is based on the violation of equal protection principle, the court has failed to address the basic issue of the level of scrutiny that must be applied to laws against same-sex unions. US equality jurisprudence provides three levels of scrutiny (strict, intermediate and rational-basis) that courts may apply to test the constitutionality of laws. The majority does not seem to apply any of these. Further, the court fails to appreciate the legitimate governmental interests behind this statute in ensuring stability and uniformity in the definition of marriage for the purposes of federal laws, especially in the presence of varying state laws on the status of same-sex unions. Relying on the title of the Act and snippets of legislative history, the majority strikes down the law based solely on its opinion of illicit legislative motive of harming a class of persons.

(3) Liberty and Due Process. The majority held that DOMA deprives liberty and violates basic due process principles. This suggests that the court used substantive due process, which protects rights and liberties deeply rooted in American history and tradition. The court did not assert that right to same-sex marriage is one such right. There is no constitutional right to same-sex marriages. Thus, this is a claim for recognition of new right from the judiciary, and deserves certain judicial restraint.

The dissenting opinions also highlight how this decision acts as a judicial invasion of democracy. The Constitution does not choose between opposing views on the institution of marriage. The dispute over same-sex marriages should be democratically decided by the people, acting through their elected representatives at state and federal levels, and not the court. The court casts the supporters of the traditional institution of marriage as bigots, wrongfully appropriating an important public policy debate.

Position in India
US v. Windsor inevitably reminds India of the pending decision from the Indian Supreme Court on an appeal against the Delhi High Court decision in Naz Foundation case. But there are important distinctions between the two disputes. The Naz judgment held unconstitutional Section 377 of the Indian Penal Code (IPC) that criminalized consensual sexual conduct between same-sex adults, appeal against which is pending before Supreme Court. There is a difference between homosexuality as an identity, homosexual conduct that IPC criminalized and same-sex marriages. The issue of same-sex marriage is yet to be dealt with by Indian courts.

While decriminalization may be an easier issue than same-sex marriages as it spares decision on questions on the institution of marriage, the Naz judgment does seem to be much more legally and constitutionally grounded that the majority opinion in US v. Windsor. Perhaps a bit more nuanced analysis could have at least saved the majority from dissenting Justice Scalia’s remark of the court’s opinion being just “nonspecific hand-waving”.

The narrative of judicial appointments

4 Jul

This post first appeared as an article on Bar and Bench on July 2, 2013, and can be accessed at their website here

News reports have indicated the government’s plan to establish a judicial appointments commission (“JAC”) for the appointment of Supreme Court and High Court judges. If established, the body would not only mark a sharp change from the current appointment process, but also from the constitutionally mandated procedure for appointment. The system at present however, is also markedly different from what the Indian constitution mandates. It remains to be seen whether the proposed JAC leads to better outcomes.

The crucial aspect in measuring outcomes is however, the correct determination of the desiredoutcome. In order to assess this issue, certain other considerations need to be examined, which are explained in this paper. These are: (a) constitutional provisions, and the original process of appointment, (b) the present process of appointment and their historical development, (c) the views of different experts and commissions on the issue, and (d) the determination of the desired outcome, and whether the proposed JAC would lead to this desired outcome.

Constitutional provisions

Section 124(2) of the Constitution provides a fairly neat method of appointing judges to the Supreme Court. It states that the President (read the Executive) shall appoint a judge of the Supreme Court after consultation with such judges of the Supreme Court and High Courts as he may deem necessary. The Chief Justice of India (“CJI”) has to be mandatorily consulted regarding the appointment of every judge other than to the position of the CJI. Similarly, under Article 217(1), the President of India appoints judges to High Courts after consultation with the CJI, the Governor of the State, and the Chief Justice of the High Court (for the appointment of a judge other than as Chief Justice of that High Court).

The primary authority for the appointment of judges under the Constitution is thus the President, or the central executive (“Executive”). The Executive has to discharge this function in consultation with other constitutional functionaries. Notice however, that this consultation process is not mandatory (apart from with the CJI for Supreme Court judges, and the Chief Justices of the High Courts for High Court judges). The Constitution also does not state that the Executive has to abide by the opinion of other constitutional functionaries while appointing judges.

Over the years though, this position has been completely deviated from, for reasons many consider completely justified.

Present process and origin of process

The Indian Constitution, like many other constitutions, creates a separation of powers between different wings of the state i.e. Executive, Legislature, and Judiciary. However, all three wings remain accountable to each other in some form or the other. The central and state executives for example, are directly accountable to Parliament and state legislatures respectively. Similarly, while the judiciary is independent of the Legislature and the Executive in most aspects, the power of appointment vests with the Executive as explained above, and the power of removal rests with Parliament. This system is designed to enable the judiciary to remain accountable to the democratic process in some measure.

The present process of appointments arose out of a perceived need to remedy certain ills that became apparent with the constitutionally mandated procedure. Seervai’s Constitutional Law of India (4th Ed., Vol. 3) records that the day before CJI Venkataramaiah retired from the Supreme Court, he gave an interview stating:

…such judges are appointed, as are willing to be ‘influenced’ by lavish parties and whisky bottles…in every High Court, there are at least 4 to 5 judges who are practically out every evening, wining and dining either at a lawyer’s house or a foreign embassy…practically in all 22 High Courts, close relations of judges are thriving. There are allegations that certain judgements have been influenced though they have not been directly engaged in lawyers in such cases.

This extract encapsulates, in brief, the concerns regarding the improper behaviour and conduct of judges in the higher judiciary. Though a number of past judgements had interpreted the respective powers of constitutional functionaries regarding the transfer and re-appointment of judges, the case of Supreme Court Advocates-on-Record v. Union of India (“Judges Appointment case”) is responsible for moving towards the present system of appointment of judges. I summarise the main points laid down by the court below:

1.     The process of appointment of judges “is an integrated participatory consultative process”. All constitutional functionaries must perform this duty collectively to reach an agreed decision.

2.     The proposal for appointment of a judge must arise from the CJI (for appointment of a Supreme Court judge) and from the Chief Justice of a High Court (for a High Court judge).

3.     In the event of conflicting opinions, the opinion of the CJI has primacy. No appointment can be made without the concurrence of the CJI.

4.     A collegium system of appointment must be initiated.

In 1998, in the case In Re Presidential Reference: Under Article 143(1) of the Constitution of India (“2nd Judges Appointment Case”)the Supreme Court further evolved this doctrine and created a system wherein judges would be appointed by a collegium consisting of the four senior-most judges of the Supreme Court. Though the Executive would make the actual appointment, it would have no other role in the appointment of judges to the High Court or Supreme Court. As recently as January 2013, the Supreme Court rejected a plea to revisit the Judges Appointment Cases (read more here).

These two cases therefore departed considerably from the procedure enshrined in the Constitution. Many have argued that insulation of appointments from executive influence is necessary to promote judicial independence, but it is debatable whether this insulation has led to a qualitative betterment in the conduct of the judiciary as a whole, or the quality of judgements. Additionally, various administrative and structural issues have been highlighted. Over the years, political parties, experts and commissions have proposed a number of mechanisms for the appointment of judges. It may be worthwhile to consider them briefly below.

Alternative mechanisms

The table below encapsulates in brief the proposals of various bodies regarding the appointment of judges.

Report/Commission/Body Recommendations
Law Commission – 80thReport (1979) Appointment process in High Courts to be initiated by CJ of that High Court. Constitutional procedure to be followed in other aspects. The Chief Minister of the state is free to disagree with choice of the CJ. One-third of judges appointed should be from outside the state.Interestingly, the report mentioned the need for a “Judges Appointment Commission”, for eliminating the “sway of political or other extraneous considerations…”.
Law Commission – 121stReport (1987) Recommended the establishment of a National Judicial Service Commission. The CJI would be the Chairman, and there would be three senior-most judges of the Supreme Court, three senior-most CJs of the High Courts, the Minister for Law and Justice, the Attorney General of India, the outgoing CJI, and a legal academic in the Commission. Additionally, while deciding a vacancy in a particular High Court, the CJ of the High Court, the Chief Minister and Governor of that state must be co-opted into the deliberations of the Commission.
67th Constitutional Amendment Bill, 1990 Proposed the creation of a National Judicial Commission composed of serving judges headed by the CJI.
Law Commission – 214thReport (2008) Recommended restoration of the original constitutional procedure to be followed in wake of the Supreme Court’s decisions in the Judges Appointments cases.
National Advisory Council Paper titled “A National Judicial Commission: Judicial Appointments and Oversight Recommended creation of National Judicial Commission with the Vice-President as Chairperson, and the Prime Minister, Speaker of Lok Sabha, Law Minister, Leaders of Opposition from both Houses of Parliament, and the CJI as other members. The President would have the power to reject a candidate recommended by the NJC.

As may be noticed from the table above, all the reports above emphasize the need for a broad-based consultative framework for the appointment of judges. Significantly, all these reports have also been informed by practices in other countries, most of which allow for some sort of a consultative process between members of the judiciary, executive, legislature, and civil society. The process being proposed by the Central Government at present also aims to create a broad-based consultative process.

Proposed process

According to news reports (here and here), the proposed Judicial Appointments Commission will probably have the Prime Minister, the Leader of Opposition, the Law Minister, the CJI, four other senior judges of the Supreme Court, and a prominent jurist as members.  The process therefore seeks to give the executive and legislature a greater role in the appointment of judges than the collegium system.

The question however remains: what is the desired outcome? The proposed system seeks to increase democratic accountability in the process of appointments. This is thought to be necessary due to the widespread perception that judicial appointments remain non-transparent, that delays in appointments occur due to the current in-house process of appointment, leading to a huge backlog of pending cases, and finally, that democratic accountability is an end in itself.

But is democratic accountability an end in itself? Does democratic accountability also not seek to further other expectations we may have from the judiciary, such as the writing of better judgements, decrease in backlogs and an increase in access to courts? If yes, would these goals be served merely by the creation of a Judicial Appointments Commission? The point I am trying to make is whether the judiciary can be made more accountable, more accessible, and qualitatively better without tinkering with the present appointment process? Those in favour of changing the status quo would point out that the present system is a complete departure from the constitutionally prescribed procedure. The simplest response is that the process being contemplated would also require a constitutional amendment!

There is a great need to reform the present system of appointment, in order to make it more transparent, and to achieve other social and economic ends. However, we need to think through the available alternatives for meeting our goals, and ensure that the legislative measures we take actually help in the realization of those goals.

Proposed CBI Reforms: Will the Central Bureau of Investigation remain a “caged parrot”?

2 Jul

The Central government recently set up a Group of Ministers to propose reforms and ensure the functional independence of the CBI. This came in the wake of the Supreme Court criticizing the government for its interference in the Coal blocks allocation scam. The Court had asked the government to “come out with a law to insulate the agency from external influence and intrusion”. The government has recently cleared the suggestions of the GoM on ensuring the independence of the CBI. This post examines the proposed reforms, their critique, and other areas of CBI’s functioning which need urgent attention.

Legal and administrative background

(Sourced from here)

The CBI has its origins in a special order of the British Government in the early stages of World War II:

“An executive order was…passed by the Government of India in 1941, setting up the Special Police Establishment (SPE) under a Deputy Inspector General in the then Department of War with mandate to investigate cases of bribery and corruption in transactions with which War and Supply Department of the Government of India was concerned.”

The activities of the SPE were then extended to the Railways, and in 1946, the Delhi Special Police Establishment Act was passed. The Central Bureau of Investigation was set up by a resolution dated April 1, 1963. The CBI would investigate not only cases of bribery and corruption, but also major financial law violations, and other serious crimes. The CBI’s power to investigate crimes currently arises from Section 2 of the DSPE Act, 1946.

Administrative supervision over the CBI is divided between the Ministry for Home Affairs, and the Ministry of Personnel. The overall supervision of work, and budgetary control over the CBI is exercised through the Ministry of Personnel.

Recent proposed reforms

Over the years, the CBI has understandably come in for a lot of criticism regarding its functioning. It has been commonly derided as a “political tool” in the hands of the Central government. The recent criticism by the Supreme Court spurred the government into setting up a GoM to propose reforms to make the functioning of the CBI independent. The GoM consisted of:

1. Shri P Chidambaram, Minister of Finance;
2. Shri Sushilkumar Shinde, Minister of Home Affairs;
3. Shri Kapil Sibal, Minister of Communications and Information Technology and Minister of Law and Justice;
4. Shri Salman Khurshid, Minister of External Affairs; and
5. Shri V Narayanasamy, Minister of State in the Ministry of Personnel, Public Grievances and Pensions; and Minister of State in the Prime Minister’s Office.

The GoM recommended that a panel of retired judges will monitor the investigations being undertaken by the CBI to ensure that the investigations are conducted without any external interference. In addition, it also recommended an increase in the financial powers of the CBI Director, and a new mechanism for the appointment of the Director (Prosecution) which is a Law Ministry appointee at present. These changes will be brought about by way of amendments to the DSPE Act.

These changes were heavily criticized by Leader of Opposition, Rajya Sabha, Mr. Arun Jaitley:

“The recent decision of the Union Cabinet based on GoM recommendations is a camouflage. It creates an illusion by removing the political executive and creating a proxy institution instead. The government’s decision is a remedy worse than the existing problem”

As reforms go, the above-mentioned reforms proposed by the government seem fairly innocuous. Merely appointing a panel of retired judges may not ensure the CBI’s independence. This panel has to have the right incentives to perform their role efficiently. If such incentives are not in place, even their independence will eventually be compromised. This is so, especially since the panel itself will be selected by the Central government. Second, and on a related note, this move could well become just a post-retirement benefit for retired judges. Enlisting them on this panel could have the effect of co-opting them into the process of subverting the CBI’s independence rather than enhancing it. Third, there are a number of other areas of reform of the CBI which are urgently required. Without these, the CBI will struggle to become truly independent of the government.

Other required reforms

A Select Committee of the Rajya Sabha to look into the Lokpal Bill had suggested much more drastic reforms to the CBI in order to ensure its independence (Summary here). Some of these are:

  • The CBI Director would be appointed by a panel consisting of the Prime Minister, the Leader of Opposition, Lok Sabha, and the Chief Justice of India.
  • The CBI would be under the superintendence of the Lokpal.
  • The CBI should have an independent Directorate of Prosecution, who shall be recommended by the Central Vigilance Commission.
  • The CBI Director, and Director of Prosecution shall have a fixed term of two years.

In addition, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice had examined the functioning of the CBI and presented a detailed report in 2008. Their main recommendations regarding the working of the CBI were:

  • The number of officers placed within the CBI on deputation should be reduced. Greater emphasis should be placed on direct recruitment of CBI officers, and service conditions such as promotions should be incentivised for direct recruits.
  • The Committee noted that there was a large number of vacancies in the CBI. “It is of the opinion that the large number of vacancies is bound to result in severe strain on the existing manpower who are hard pressed to deliver positive results and that it is detrimental to professional excellence and efficiency.” It recommended that steps should be taken on a “war-footing” to fill up existing vacancies within three months.
  • Shockingly, the Committee also noted a 27% shortage in residential accommodation for CBI personnel. Furthermore, as of 2008, investigating officers had not been provided with mobile phones or laptops!
  • The Committee had also recommended greater financial powers for the CBI Director.

The problem of vacancies

The problem of vacancies within the CBI is indeed acute. A recent press release highlighted more than 800 existing vacancies within the organization. The relevant information is given below:

Cadre

Sanctioned Strength

Available Strength

Vacancy

Executive

4510

3901

609

Legal

318

258

60

Technical

155

115

40

Ministerial

1,538

1,436

102

Canteen posts

70

43

27

TOTAL

6,591

5,753

838

(Sourced from here)

The CBI needs to work independently of the government. Yet, it is a government department, and has to be accountable to democratically elected officials. The reforms proposed by the GoM do not balance this tension between independence and accountability. Unless this is done, the CBI cannot become a well functioning organization.

SLPs and Supreme Court: Honest activism causing delays in justice

29 May

The recent judgement of the Supreme Court in the case of Mathai @ Joby v. George and Anr. ( highlights how (probably) well-meaning activism can in the larger scheme of things, cause greater harm to the system if not backed by well thought out systemic changes. The judgement concerned the frivolous filing of Special Leave Petitions in the Supreme Court (It is a form of appeal which the Supreme Court can allow on a discretionary basis under Article 136 of the Constitution).  Presently, most of the work in the Supreme Court involves SLPs and therefore, this judgement becomes even more important.

The judges in this decision pointed out that though appeal under this provision is discretionary, the Constitution does not mention what sort of discretion should be exercised.  The Court then referred to a speech made by Mr KK Venugopal (Senior advocate and noted constitutional expert) on the state of the Supreme Court in India (For his speech, click here).  The judgment quotes him saying:

“an alarming state of affairshas developed in this Court because this Court has graduallyconverted itself into a mere Court of Appeal which has sought tocorrect every error which it finds in the judgments of the HighCourts of the country as well as the vast number of tribunals…He further observed that if the Apex Courtseeks to deal with all kinds of cases, it necessarily has toaccumulate vast arrears over a period of time which it will be impossible to clear in any foreseeable future. According to him,this is a self-inflicted injury, which is the cause of the malaisewhich has gradually eroded the confidence of the litigants in the Apex Court of the country…”

The most telling portion of the judgment is perhaps this:

“Mr. Venugopal has pointed out that in the year 1997 therewere only 19,000 pending cases in this Court but now, there areover 55,000 pending cases and in a few years time the pendencywill cross one lakh cases. In 2009 almost 70,000 cases were filedin this Court of which an overwhelming number were Special Leave Petitions under Article 136. At present all these cases have tobe heard orally, whereas the U.S. Supreme Court hears only about100 to 120 cases every year and the Canadian Supreme Court hearsonly 60 cases per year.”
In the USA, the Supreme Court reached its own conclusion as to how to deal with huge number of cases that will come before it – allow lower courts to be the final decision makers in all cases where the judgment affects only the two parties.  Then the Supreme Court is left only with cases which are of general importance to law.
In India on the other hand, well-meaning activism in the form of PILs and (perhaps) giving greater leeway to admission of SLPs has diluted the purpose of the Supreme Court.  In its ambition to provide justice for all, its aim of giving well considered judgements which consciously mould a legal system has perhaps been lost.

How much does a Supreme Court judgement cost?

3 Feb

“What kind of impact do some judgements have on the finances of the government?”  In this post, I propose to look at this question using a judgement delivered in April 2009.  In the course of this post, I also argue that judges should refrain from delivering judgements which have huge financial and policy implications, as they sometimes have the effect of re-shaping government policies, and do not always result in public good.

The case I am using is: Avinash Mehrotra v. Union of India (Supreme Court – W.P No. 483 of 2004, judgement by Justice Dalveer Bhandari and Justice Lokeshwar Panta, accessible here).

The relevant facts: The case was a PIL filed relating to a fire in a private school in a district of Tamil Nadu.  The fire started in the school’s kitchen while the cooks were preparing the mid-day meal.  Usually around 900 students attended the school daily, and a large number perished in the fire.

What the PIL was for: (1) Every child should get free, safe, secure, and good education (!);  (2) Stringent rules and regulations at par with the highest standards should be framed for ensuring safety in schools;  (3) such standards should be enforced effectively;  (4) Manuals for fire-safety procedures should be framed;  (5) kitchens in the school should have adequate safety mechanisms;  (6) schools should not exceed the limit of children it can admit;  (7) Schools must prepare emergency safety plans, assign duties to teachers, staff, and students and teachers, and also local authorities should be trained for responding to emergencies;  (8) a committee of jurists, legal experts and lawyers be constituted to formulate a comprehensive report for carrying out reforms in the safety standards.

The judgement of the court:

First, the Court noted that States admit that many schools do not meet self-determined safety standards, let alone those of the National Building Code.

Second, it noted that thousands of schools lack any fire suppression equipment.

Third, it noted that thousands more schools do not have adequate emergency exits or non-inflammable roofs.

Fourth, it said that the complainant’s brief was viewed by them as a document which crystallised safety standards for schools.

Fifth, it then rambled on for a bit about the importance of education.

Sixth, it said that the right to a safe and secure education is a part of the fundamental right to education.

Lastly, it said that portions of the National Building Code of India, 2005 will have to be complied with, and named the specific parts it wanted complied. These include (DISCLAIMER: Some points which I thought were very reasonable have not been mentioned.  This post already seems never ending!!):

(a) Fire fighting training to all teachers and students from X to XII standards.

(b) Fire Task Force in every school comprising of Head of the institution, two teachers / staff members and one member from the Fire and Rescue Department should be constituted.
(c) Display of emergency telephone numbers and list of persons to be contacted on the notice board, and also Mock drills to be conducted regularly. Fire alarm to be provided in each floor and for rural schools
separate long bell arrangement in case of emergency.
(d) There shall be a School Safety Advisory Committee and an Emergency Response Plan drafted by the Committee in approval and consultation with the concerned Fire & Rescue Department.
(e) All schools to observe Fire Safety Day on 14th of April every year.
(f) Existing school buildings shall be provided with additional doors in the main entrances as well as the class rooms if required.
(g) Kitchen and other activities involving use of fire shall be carried out in a secure and safe location away from the main school building.
(h) An Inspection Team consisting of experts like a Civil Engineer, a Health Officer, a Revenue Officer, a Psychologist, a Fire Officer, a local body officer and a development officer besides the educational authorities shall carry inspection and assessment of infrastructural facilities before the commencement of each academic year.
My issues:
Positives: It noted the lack of planning, training, infrastructure and the consequent danger posed to students in schools in emergency situations.  The court rightly asked state governments to ensure these issues are addressed.
Negatives:
First, the court went on to address the specific question of how these deficiencies are to be addressed.  The court was right in pointing out the government was not discharging its duties adequately.  It was not right in pointing out how it should be doing it.
Second, by telling the government to impart fire-safety related education, it also partially decided school curriculum!! Note, that while the necessity of such education is undoubted, it is the role of the government to decide whether such education should be given, or can be given.
Third, the government has been asked to implement directions it would find difficult to do, even while acting in good faith.  As discussed in an earlier post, there are nearly 7.5 lakh primary schools in the country.  Setting up, (1) Fire Task Forces, (2) inspection teams, (3) separate kitchens, and so on requires a great mobilisation of resources when a large number of schools do not have pukka roofs, buildings, or even toilets.
My criticisms lead me to the point of stating that while the directions of the court are well intentioned, since the government is forced to abide by them, the judgement actually not just re-shapes the priority of the government, but also reduces the flexibility of the government in ensuring that the spirit of the judgement is upheld.

Indian Supreme Court: When Distance affects Visibility

27 Jan

Taking a break from my posts on China, I am summarising a fantastic article by Mr. Nick Robinson (Yale Law School South Asia Teaching and Research Fellow and a visiting fellow at the Centre for Policy Research, New Delhi) which appeared recently in Frontline magazine.  The article argues that the Supreme Court is not as populist as it is made out to be, and access to it is actually getting more and more difficult by the day.  It also provides hard statistics on how the Supreme Court is accessible mostly to those with money and resources.

Assertion One:  Efforts to make the SC more accessible to the poor and people living in distant parts of the country have failed.

This can be seen by studying what percentage of cases are admitted to the SC on appeal from various High Courts.  “While on an average, nationally, there was about a 2.5 per cent chance in 2008 that a case will be appealed from a High Court to the Supreme Court, in States close to Delhi, such as Punjab, Haryana and Uttarakhand, the appeal rates were more than double this. In Delhi itself the appeal rate was 10 per cent…”.  In Tamil Nadu, the rate was around 1%.

Assertion Two:  Access to the SC is very costly, and affects what types of cases the SC hears.

“In 2007, almost 40 per cent of the Supreme Court’s regular hearing decisions were on cases relating to tax, labour or service issues. These matters, along with arbitration cases, were also amongst the most likely to be admitted by the court for regular hearing.”

The number of Writ petitions (where people directly approach the SC to protect their fundamental rights) was a mere 2% of matters listed for Admission (The SC allots specific days, usually Mondays and Fridays to decide which matters will be heard in detail by it.  Lawyers present arguments to justify why the Court must hear the matter in detail, and not throw it out).  Out of this 2%, guess how many were admitted.  According to Mr. Robinson, none!!

Compared to this, in the 1970s, cases about fundamental rights were about 10% of all cases admitted in the SC.

Assertion Three:   The SC has ruled increasingly against the disadvantaged.

The author points to research made by an economist and a legal scholar that of cases relating to fundamental rights and public interest litigation heard over the past 30 years finds the SC has ruled increasingly against the socially disadvantaged. During the same period, more privileged litigants have become more successful in such cases.

Assertion Four:  Constitutional benches, where significant matters of constitutional law are heard, now make up fewer than 1 per cent of the court’s regular hearing decisions.

Assertion Five:  The media may have over-emphasized the problem of backlogs in the SC and other courts, and ignored other problems.

A court’s ability to clear pending cases does not say anything about the quality of those judgements.  It also does not show whether the court should have agreed to hear the matters in the first place.

The article then goes on to talk about much-needed reforms in the judiciary, including those proposed by the judiciary and the law Ministry.  The article is important, if only because it gives some hard data on problems people working directly, or affected by such problems can relate to, but never state with much authority.

Courts, Judges and RTI

22 Jan

A brief glance at the assets of Supreme Court judges on-http://www.supremecourtofindia.nic.in/assets.htm highlights two important points:

1. There is no mention of the value of the assets of judges on a specific date.  Information concerning assets is only useful if we are able to keep track of the increase/decrease in personal incomes over a period of time.

2. Since the information put up on the website is voluntary, some of the judges have declared the assets owned by their spouses, while the others have not.  This gives rise to a larger question whether the income of the spouse should also be up in the first place.

Also, costs of filing RTIs in High Courts are very very high compared to other public institutions.  It costs Rs. 500 to file an RTI application in the Allahabad High Court!!  What use is the right to information when High Courts, the guardians of the rule of law, try to dilute the effect of the law on themselves?

Judging our judges

20 Jan

Today’s post is an article appearing in the Indian Express, concerning the condition of judges in our country:

In defence of their lordships (Indian Express)

GOPAL SANKARANARAYANAN Posted online: Wednesday, Jan 20, 2010 at 0250 hrs

On September 1 2009, Neeraj Kishan Kaul stepped down as a judge of the Delhi High Court — a mere four months after being sworn into that coveted office. Exactly two months later, Justice V. Giri of the Kerala High Court followed suit, being the first permanent judge of that court to do so. At a time when brickbats are cast on the courts by social activists and judge-baiters, it is a matter of concern that some of the finest judicial talent decline the gavel. Some reflections on the life of a judge in India, could perhaps explain why the Bench is losing its allure.

Overworked: Every week, the average superior court judge is expected to peruse a hundred paperbooks — tightly stitched files containing the fate of the litigant — some of which run into thousands of pages. Coupled with this are the actual court hearings from 10 am to 4:30 pm every weekday, many of which require elaborate, well-reasoned judgments, citing appropriate precedent, culled out through meticulous research. After all, the law of the land is being laid down. In addition are various social engagements, lectures, committee meetings and teaching assignments. Such being the lot of a judge’s life, little time is available for self and family.

Outcast: Thanks to an ill-conceived and overly moralistic resolution passed by the Supreme Court in 1997, those elevated to man the courts are advised to “eschew” contact with members of the Bar and to “practice a degree of aloofness”. Spare a thought for one who has spent the past 20 years in the lap of a convivial Bar with fellow lawyers, only to now be asked to isolate oneself from those very companions of many a tea-room chat.

Obsolescent: In a tongue-in-cheek remark that formed a part of one of his judgments, the English judge, Lord Bridge had said “the populist image of the geriatric judge, out of touch with the real world, is now reflected in the statutory presumption of judicial incompetence at the age of 75”. In India, with Constitutionally prescribed retirement ages of only 65 for the Supreme Court and 62 for the High Courts, judges are presumed to be past their “sell by” date when that golden birthday arrives, even if all their contemporaries at the Bar are still at the peak of their powers. Simply put, if Ram Jethmalani had accepted judicial office, he would have retired 22 years ago.

Impoverished: While a judge in Singapore earns a million dollars a year and his British counterpart makes almost half that amount, as per the recently enacted High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2009, the Chief Justice of India sits pretty at the top of the Indian judicial ladder with about $ 26,000. That amount is just a little less than what the nation’s reputed corporate firms offer graduating law students. For a more direct perspective, the top 20 lawyers in the country earn that amount in a single day’s hearings. It is little wonder then, that each of them had declined judgeship when offered.

Accused: Enough homilies have been delivered, especially in the recent past, on the conduct of the judiciary. Some arguments have had merit, while others have been plainly motivated. Yet, in all of this, when the integrity of judges have been questioned and the institution’s lack of transparency attacked, little thought is given to the vast majority of honest and industrious members of the Bench who have sacrificed much to be of service to the nation. To weather all of this in the grim knowledge that only silence is permitted requires rare mettle.

Kaul and Giri have returned to enrich the Bar, both commencing practice at the Supreme Court. Their reasons for demitting office remain personal. Yet, one cannot help but wonder that if the factors enumerated above had been different, the result might have been otherwise. Unfortunately, in today’s India, a judge’s chamber no longer possesses the warm hearth on which justice curls up to rest for the night. It is a cold, wet floor, where the silence is only broken by the ticking of a relentless clock.

The writer practices law at the Supreme Court of India

Delhi HC says Supreme Court CJI comes within RTI Act

12 Jan

The Delhi High Court today delivered its judgement on the case regarding the issue of whether the CJI’s office comes within the purview of the RTI Act.  The High Court also stated that its judges will be making its assets public within a week.  Indian express is carrying the story:

CJI’s office comes within RTI Act: Delhi HC

A Virgin’s inclination to be truthful

6 Jan

Indian Express published a story yesterday considering one of those Supreme Court judgments which makes us wonder just how out of touch judges in the Apex Court are with the evolving mores of society.  The issue is simple: The Court has observed that if an Indian woman or girl alleges sexual assault, courts need not look for corroborating evidence if her version of events “inspires confidence”. I have a bone to pick both with the judgment of the Apex Court and the story published concerning the same.

The judgment first: Wahid Khan v. State of Madhya Pradesh (Cr. Appeal No. 1798 of 2008) concerns the rape of a minor (the lady in question was then 12 years old) in 1988.   The minor was rescued from some miscreants by an auto-rickshaw driver, who offered to take her home.  The driver did not however drop her home, took her by an empty stretch of road, dragged her out into the bushes, gagged her and raped her.  He was caught red-handed while performing intercourse by two police personnel.

The judgment while discussing the evidence presented states how medical reports found that penetration had not been complete, and goes on in some detail regarding the intricacies of the act committed (probably routine in such judgments, but brutally insensitive all the same).  The point of contention arose when the counsel for the accused argued that as one of the medical examiners (who had recorded that there had been no penetration)  had not deposed before the lower court, there was not enough evidence to corroborate the story of the victim.

In all fairness, the Court’s first step was to state settled law in this regard, which is that:

Rameshwar v. State of Rajasthan (1952): “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge….”

Essentially saying that corroborating evidence is not an essential requirement for conducting a person, but the need for corroboration should always be present in the mind of the judge.  Then however, the Court goes on to add:

It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are. (Para 21)

Some points which I found interesting in the above-quoted paragraph:

1. The Court mentions that it is a matter of “common law” that women do not make senseless allegations.  I hope this is a typing error, else our Apex Court actually believes “common law” (a well-defined body of law derived from our British colonial legacy) to include the degree of seriousness exhibited by women in rape cases!!

2. The Court assumes unmarried (also spelled ‘chaste’) women usually tell the truth.  Does this assumption include all unmarried women, or only ‘chaste’ unmarried women?  Importantly, will a different degree of corroboration be required in rape cases where the victims are married, or unchaste?

3. The Court rightly points out that Indian society is socially backward, but then proceeds to use that as a reason to argue that prevailing dogmas lend the evidence of women credibility to a point where no corroboration is required!!  To substantiate this point, I quote the next paragraph of the judgment:

Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.

While the previous paragraph could be considered mere observations by judges in a criminal case, the portion quoted above does read like a definitive interpretation/ clarification of existing law which would be binding in the future.  Will it lead to a flurry of decisions by judges who will consider evidence given by rape victims to be ‘credible’ and confidence-inspiring and dispose of the time-consuming task of looking at corroborative evidence?

The Article in Express: The article makes two points not mentioned above – (a) In a system cruelly stacked against women, the “sole testimony of the prosecutrix has been accepted as sufficient for conviction in most cases of sexual violence”, and rightly so; and (b)  While doing so, the Court however uses the approach of treating women as victims, and uses concepts of shame and violence to discuss sexual violence.

While I agree with the second point, I have serious issues with the first one.  While it is understandable that the judiciary will try to be innovative if it wants to dispense justice to victims of sexual assault and rape, dispensing with the need for corroboration constitutes a severe dilution of evidentiary standards.  Failure of the prosecution to adduce good evidence might definitely be one of the factors in the low conviction rate in rape cases.  It is however just one of many, including non-reporting of cases, refusal by the police to register FIRs, pressure by family and friends etc.

In fact, the Court need not even have discussed this issue, since it itself noted that in the present case, the evidence presented was consistent, and did not need corroboration at all!!

Protection for divorced Muslim women

15 Dec

An article in today’s online edition of Indian Express (‘Shah Bano to Shabana Bano‘) praises the reformist track record of the Supreme Court in matters concerning divorce and maintenance of Muslim women.  A perusal of the judgement delivered in the case of Shabana Bano v. Imran Khan shows the subtle yet refined lines of legal reasoning drwan out by the judicial system since the Act became law.

The present law as interpreted by our Supreme Court is that a divorced Muslim woman would be able to claim maintenance under Section 125 of the Criminal Procedure Code, 1973 as long as she does not re-marry.  This case only builds upon another existing case (Daniel Latifi v. Union of India, 2001) which held that a Muslim woman is entitled to a lump sum at the time of divorce.

It is shameful to see that an organ of government which is supposed to be an arbiter of justice is at the fore-front of reforming Muslim personal laws.  In the Shabana Bano case it dwelt upon the meanings of relevant Muslim treatises to determine what would be the adequate standard of protection to be given to a divorced Muslim woman.

Deliberating upon the nature of Muslim personal law, and the protection which should be given to divorced women is the role of the Parliament.  All Parliament did instead was to pass a regressive law which has not been touched in its 24-year long existence.  Except for some Private Member Bills introduced in Parliament, and stray discussions here and there, no substantive discussions have been witnessed in parliament over the issue.

We should indeed be thankful that the Courts have deftly side-stepped the Muslim Women Act to bring Muslim women on a more egalitarian plane.  An indicator of the uselessness of the law can be seen by the fact that less than a hundred cases on maintenance under this law seem to have been decided by High Courts and the Supreme Court (Manupatra search).  For a law which has continued to affect minorities for more than two decades, a clearer indicator of the sheer futility of its existence cannot be imagined.

It seems ironical, but also tragic that a law created ostensibly to protect the rights of Muslim women has been used so little by the targeted group itself.

Psyche of a Murderer honoured

13 Dec

In a recent judgement regarding death sentences for murder (Dilip Premnarayan Tiwari & Anr. v. State of Maharashtra), the Supreme Court has observed that courts will have to consider social issues like inter-caste marriage, community and religion and the circumstances in which a murder was committed while awarding punishment to an accused in a murder case.  Needless to say, selected quotes from the judgement published in leading dailies have raised the hackles of civil society, so much so that some lawmakers demanded a separate law for honour killings!!

The judges while delivering the judgement were trying to look into any mitigating circumstances for the conduct of the accused.  One such consideration in their mind was the role played by caste in society.  Depending on one’s perspective, one may approve, or take issue with the eventual decision.

On one side would be a strictly legalistic, enlightened principle of objective neutrality which would treat a murder as murder, and a cold-blooded, pre-meditated one as particularly heinous.  The natural tendency of such an approach, when confronted with the fact that the murder was in fact an honour-killing would be to be even more shocked by the depravity of the act.  A harsh sentence is deserved in such cases, it would be argued.

On the other side is to take into consideration social factors which would lead a person to such a mental state that he would commit murder.  Indeed, if mitigating factors are given due importance in ‘crimes of passion’, if the mental state of the accused is deliberated upon in almost all cases, why should the role of caste, a dogma as socially pervasive as religion, if not more, not be deliberated upon in determining a person’s mental state while committing a crime?

I do not for one moment support blatantly biased judgements of courts in numerous cases where members of the lower-castes have been victims and the accused have gotten away only too freely.  Such instances have been blots on India’s attempt to secure equal and appropriate justice to those at the lower rung of society.  My argument is instead that ‘caste’ be treated as an objective factor while evaluating the mental state of the accused especially in cases of honour killings.

Over the years, our judicial system has ostensibly followed a tailored methodology of ‘blindness’ towards social factors such as caste, race and religion.  This ostensible blindness may have allowed many a biased judge to dispense justice on the basis of his or her own closely held beliefs while seemingly maintaining an objective neutrality grounded in law.  This has not exactly endeared our legal system to the masses.  Caste panchayats continue to thrive, social issues and their consequences continue to stifle individuals without effective recourse to law.  I therefore welcome the Supreme Court’s boldness in acknowledging that social factors such as matters of honour, of social hierarchy do remain deep-rooted within Indian psyche.  What the Court must remain wary about however is, that it does not unwittingly legitimise such factors.

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