Tag Archives: Supreme Court

My paper on parliamentary oversight in India

9 Aug

My paper proposing a framework for Parliamentary Oversight in India has been published in the NUJS Law Review (link). A brief description of the paper: 

The need for a strong monitoring mechanism of the Executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The Executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the Executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the Executive. It would also increase the general level of expertise within Parliament by making parliamentarians more technocratic and giving them greater avenues for specialization in different aspects of policymaking. This has held true in varying degrees in different countries as examined in this paper. Enacting a law that formalizes mechanisms of oversight within Parliament, especially within the committee system, can create such a framework in India. The central focus of a strong oversight framework is the system of parliamentary committees. Reinvigorating existing committees by giving them greater autonomy, clearer powers and research support are central tenets of the proposals made in this paper. Along with restructuring parliamentary committees, the incentive structure for Indian parliamentarians to conduct oversight is also examined, and proposals are suggested to ensure they perform their oversight function effectively. Such a law should reshape the way Parliamentary business is conducted with a view to holding government accountable, while at the same time allowing the central executive to function independently, and with greater efficiency.”

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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!

Is the Food Security Ordinance a game-changer for India’s poor?

23 Jul

Citing the disruptions in Parliament, the UPA government decided to promulgate the National Food Security Ordinance on July 5. Under Article 123 of the Constitution, the President can promulgate an Ordinance when Parliament is not in session and there is need for ‘immediate action’. It is possible that the government has crossed a line of Constitutional propriety by promulgating this Ordinance since Parliament is about to convene in a few weeks and there is a similar Bill already pending in Parliament. This issue will be explored more fully in my next blog post. In this post, I propose to examine the key highlights of the Food Security Ordinance and whether it would deliver food security to the citizens of this country.

Highlights of the National Food Security Ordinance

  • It entitles upto 75% of the rural population and 50% of the urban population to 5 kg food grains per month at a subsidized rate.
  • Rice, wheat and coarse grains will be sold at Rs 3, Rs 2 and Rs 1 per kg respectively.
  • Central government shall decide the proportion of the population to be covered in each state.
  • State governments shall identify the eligible households in the states.
  • Food grains shall be distributed to the eligible persons through the network of fair price shops under the PDS.
  • In case the central government is unable to supply food grains to the state, it shall compensate the state governments who have to give a food security allowance to each entitled person.

Key milestones in India’s food security policy

The notion that access to food should be a right has its origin within the UN’s 1966 International Covenant on Economic, Social and Cultural Rights. Food security exists when all people at all times have access to sufficient, safe, nutritious food to maintain a healthy and active life.

India’s tryst with food security can be traced back to 1996 when the Supreme Court declared that the “right to live guaranteed in any civilized society implies the right to food”. This was followed by a writ petition filed in the Supreme Court by the People’s Union for Civil Liberties (PUCL) Rajasthan in April 2001 against the central government, Food Corporation of India (FCI), and six state governments. The petition contended that the right to food was a fundamental right under “the right to life” provided by Article 21 of the Constitution of India.

Although no final judgment has been given, the Supreme Court has issued several interim orders in the case. On May 8, 2002, the Supreme Court appointed two Commissioners for the purpose of monitoring the implementation of the interim orders (see reports).

Both UPA I and II made food security an electoral promise and entrusted the task of drafting a legislation to the Sonia Gandhi led National Advisory Council (NAC). On October 23, 2010, the NAC made certain recommendations about the basic framework of the Food Security Bill. In response, the Prime Minister set up an Expert Committee under Dr C. Rangarajan to examine the Bill, which submitted its report in January 2011. It stated that it would not be possible to implement the NAC recommendations because of lack of availability of food grains and huge subsidy implications. The NAC however disagreed with it and prepared a draft Bill in June 2011.

The government finally introduced the National Food Security Bill, 2011 in the Lok Sabha on December 22, 2011. It was referred to the Standing Committee on Food, Consumer Affairs and Public Distribution, which submitted its report in January 2013. The discussion on the Bill had been initiated during the Budget session of 2013. The government also introduced a set of official amendments to the Bill, which have been incorporated in the Ordinance that was promulgated recently.

Ordinance: A hit or miss?

Opinion is divided about the need and desirability of the Food Security Ordinance. Some experts such as Jean Dreze and Amartya Sen are staunch supporters of the Bill given India’s malnutrition rates. Others such as Arvind Panagariya, Surjit Bhalla and Abhijit Banerjee have raised certain key issues regarding the need and impact of such a legislation. In fact, the debate on food security has dove-tailed with a larger debate about India’s governance priorities between two renowned economists – Amartya Sen and Jagdish Bhagwati (see here and here for the Sen-Bhagwati debate on re-distribution vs growth).

The criticism of the Ordinance mainly falls into the following categories: (a) purpose of the Ordinance; (b) identification of beneficiaries; (c) mechanism for delivering food security; and (d) the impact on the food subsidy burden.

Purpose of the Ordinance: The basic premise of the Ordinance is that India has a problem of persistent hunger which has led to high rate of malnutrition. Therefore, the government needs to provide the population with subsidized food grains. These premises have been challenged by various experts. Prof Arvind Panagariya, an economist at Columbia University, has recently attacked the notion that India’s child malnutrition rates are higher than that of Sub-Saharan Africa. Blaming the flawed measurement methodology of WHO, he makes a persuasive case that it is improbable that India is ahead of Sub-Saharan Africa in all other health indicators except malnutrition.

Other experts such as Arvind Virmani point out that persistent hunger is a much lesser problem than malnutrition. According to NSSO, in 2004-05, about 2% of households suffered from hunger at some point during the year. This Ordinance only addresses hunger while the focus needs to be on malnutrition which is a problem of a higher magnitude. Given the data on hunger, it is clear that malnutrition exists not so much because of lack of access to food but because of faulty diet. However, the Ordinance only focuses on providing cereals rather than nutrition rich food like vegetable, pulses and fruits. In fact, it may even have the unintended consequence of forcing farmers to grow cereals rather than fruits, pulses and vegetables.

Some experts have also pointed out that one of the major causes of malnutrition is the lack of sanitation. Unless policies focus on addressing this, malnutrition will remain a severe problem (see here, here and here). Others such as Prof Kaushik Basu have suggested that there is need to redesign how the government acquires and releases food on the market.

Identification of beneficiaries: While the Bill had divided the population into three groups (priority, general and excluded), the Ordinance only has two categories (those entitled to subsidized food grains and those who are not). However, this does not do away with the need to identify beneficiaries and thus can lead to inclusion and exclusion errors. According to some estimates, 61% of the eligible population is excluded from the BPL list while 25% of non-poor households are included in the list. The only way to completely eliminate inclusion-exclusion errors is by universalizing the scheme or by having a clear-cut exclusion criteria (see here). However, given the issue of financial burden, the problem of identification may be tackled through the biometric-linked Aadhaar number (see here and here). Basically, Aadhaar will enable the government to authenticate the identity of a person. It may reduce duplicate and ghost beneficiaries (non-existent beneficiaries). However, the success of Aadhaar in weeding out ghost beneficiaries depends on mandatory enrolment. If enrolment is not mandatory, both authentication systems can co-exist. In such a scenario, people will be able to opt out of the Aadhaar system (see here).

Mechanism for delivering food security: The Ordinance legalizes the PDS even though there is a large body of evidence about the inefficiency of the system (see Wadhwa Committee reports, Planning Commission report). These committees have pointed out issues such as targeting errors, low off-take of foodgrains by households, leakages and diversions of food grains to the open market, adulteration of food grains and lack of viability of Fair Price Shops.

Many experts have suggested other alternatives to the PDS such as cash transfer (see here, here and here) and food coupons. There is evidence that these methods have worked in countries such as Brazil (see here and here). Some advantages of these are: reduced administrative costs, expanded choices for beneficiaries, and more competitive pricing among shops. Also, allowing alternate methods could give more flexibility to the states to adopt the mechanism that suits their needs (see here).

Impact on food subsidy burden: According to the government’s calculations, the Ordinance will take the total food subsidy bill to Rs 124, 747 crore in 2013-14. However, there are other costs related to the implementation of the scheme that may not have been factored in such as cost of procurement, storage and transport of food grains. The Bill had given an annual estimate of Rs 95,000 crore as the cost to the exchequer. However, various experts refuted this figure. Their estimations vary from Rs 2 lakh crore to Rs 3.5 lakh crore (see here and here). The basic problem of having a high food subsidy bill is the effect on the fiscal deficit and inflation. Also, given the limited resources available, if the government prioritises one policy, it adversely impacts resource allocation for other policy goals. Therefore, policy choices need to be made based on what would give the most bang for the buck (see here) rather than on populist rhetoric.

It is imperative that the government considers these critiques while framing its food security policy; otherwise the Ordinance would be another lost opportunity to address a key problem faced by the poor.

Who files the most court cases in India?

26 Aug

One of the major concerns for those seeking to improve our democracy is improving “access to justice”.  Simply put, “access to justice” implies a number of things such as getting larger people to resolve disputes through courts, disposing of cases speedily, ensuring judges give quality time to every dispute, etc.  One of the problems in ensuring better access is the large number of pending cases in the Country.

As of March 2010, there were 40,60,709 (more than 40 lakh) cases pending in High Courts, and 2,72,75,953 (2.7 crore) pending in District Courts in the country.  One of the key aspects of reducing these extraordinarily large numbers is to identify those who file the largest number of cases in order to get them to reduce their tendency to litigate.   Not surprisingly, the largest litigator in the country is the Government.

Recognising this rather disturbing fact, the government announced a National Litigation Policy.  The policy states the following:

  • The National Litigation Policy is based on the recognition that Government and its various agencies are the pre-dominant litigants in courts and Tribunals in the country.  Its aim is to transform Government into an Efficient and Responsible litigant.
  • Government must cease to be a compulsive litigant. The philosophy that matters should be left to the courts for ultimate decision has to be discarded.
  • The purpose underlying this policy is also to reduce Government litigation in courts so that valuable court time would be spent in resolving other pending cases so as to achieve the Goal in the National Legal Mission to reduce average pendency time from 15 years to 3 years.
  • Prioritisation in litigation has to be achieved with particular emphasis on welfare legislation, social reform, weaker sections and senior citizens and other categories requiring assistance must be given utmost priority.

It is both tragic and encouraging that the government recognises that over the years, it has itself become the largest impediment to ensuring access to justice for millions who are left out of the system.

While many would use this argument to say that the government has failed and must be trimmed down to allow greater private enterprise, I would argue that (a) government should be re-structured to enable people to get access to basic infrastructure, and (b) government should be rationally increased in areas that we need it most: more judges, more policemen, more food inspectors and engineers.

Our existing systems do not work because the government over-staffs departments that do not need people, while not doing enough to combat major manpower shortages elsewhere.  We have one of the lowest police-to-population ratio in the world.  We have one of the lowest judge-to-population ratio in the world.  And yet, go into a government department and there are innumerable peons at an officer’s beck and call, one regulating entrants into the hallowed portals of power, one stationed there only to serve food and water, and so on.

The need of the hour is to re-adjust the priorities of the government: whether employees are required to regulate rights of access to senior babus, or to serve citizens better.

Bhopal Gas Paper Leaks: Minutes of GoM meeting leaked

25 Jun

The minutes of the meeting of the government GoM constituted to look into the Bhopal Gas Claims and the recent Court judgement were put up on the website of The Hindu.  I had saved a copy of the minutes: Full_Text__Minutes__133855a.  Though there is nothing very sensational in the minutes, what it does reveal is that the US has already refused to extradite Anderson to India in 2004, and reiterated the same position in 2008.  So, promises of getting Anderson extradited back to India may be political rhetoric rather than being based on sound legal deadlines.

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.

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

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!!

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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