And now, NOTA!

Supreme Court's reasoning in the NOTA case, delivered today, appears to be strong on Article 19(1)(a) grounds.  But on other aspects, I find the following justifications, very weak:

* The provision of secrecy must necessarily extend to NOTA
*  Other countries have it.
*  Our law-makers have the right to abstain
* NOTA will increase voter participation in democracy, as voters can send a message to parties.
* Not having NOTA will lead to impersonation of voters, as dissatisfied voters may abstain.
* EC must create awareness about NOTA ( Does the Court expect the EC to tell the voters not to vote at all  any of the candidates, if they are dissatisfied? Considering that there will always be some grounds for dissatisfaction, will it not result in the negation of EC's primary responsibility to conduct and oversee elections - a basic feature of the Constitution?)

These are my initial impressions.  I am sure our readers will analyse the judgment further and share their perspectives in the coming days. 

The Delhi gang rape verdict

In a piece titled "A Capricious Noose" published on Bar and Bench, I analyze the Delhi gang rape sentencing verdict. In the first part of the piece I describe the broad contours of, and debates within, India’s death penalty jurisprudence. In the second part, I analyze the sentencing order in Ram Singh and argue that not only was the legal reasoning in the verdict flawed, but that the sentencing order serves as a window to larger concerns with the death penalty itself. 

The NSA in India: Time for an International Right to Privacy?

Today the Hindu has a major story based on information provided by Edward Snowden to the newspaper on the extent to which the NSA has targeted communications in India under its now infamous surveillance programs of electronic communications. The article claims that India was the fifth most targeted country of the NSA's efforts - in terms of data collected - over the time period shared by Snowden. This was ahead of even China (but behind Iran, Pakistan, and a couple others). Other recent revelations have shown that the NSA has engaged in in depth spying of U.S. allies like Germany and Brazil that at times seems to even look like borderline corporate espionage (although the U.S. denies the last claim fervently). 

The Snowden leaks have sparked heated debate, if not widespread outrage in the United States, as more and more stories come out that indicate the NSA has both a much wider range of capabilities than most Americans had previously believed and that these powers have been used on a large scale to collect different types of information about Americans' communications. (The Guardian has the best reporting I think on the NSA story - it can be found here.) In this debate in the U.S., the NSA's credibility and competence has been thrown into question. The FISA secret courts that were suppose to act as a check on the NSA to protect Americans' privacy do not seem to have been much of a check at all. The NSA - although seemingly quite competent at creating a system to collect the world's communications - has proven far less capable at maintaining command and control over its own administrators. Snowden was a NSA contractor that was able to sneak out of the U.S. with large amounts of top secret data without the NSA even seeming to realize. The NSA still does not seem to know exactly what he took. We do not know if there are other Snowdens out there, or could be in the future, who might use information they take for much less public-minded purposes than starting a debate (think insider trading, blackmail, or selling secrets to the highest bidder). NSA agents, perhaps predictably, have already been revealed to have used the NSA's surveillance tools to spy on love interests. 

The U.S. debate has largely focused on the extent to which the NSA spies on U.S. citizens in the United States. Yet, obviously this is missing a major point. The NSA is spying on the other 6.8 billion people on the planet with whatever discretion it sees fit. There are no FISA courts checking this spying. No need for a warrant. If your not American, in most cases the only thing preventing the NSA from reading your email is that, well, your email probably isn't that interesting and it takes resources to read emails.

So why should we care? Hasn't the U.S. government spied on other governments for decades? Don't other governments spy on each other and on the U.S. government? There's nothing new here - all is fair in international relations.

Yet, the NSA spying program seems different. Sure, in the past, countries sent a few spies into other countries, they tried to cultivate secret informants, maybe implant some microphones into the embassy of a foe, but by and large they didn't, and couldn't, spy on ordinary citizens in other countries. This has changed. The Americans, the British, the Chinese, and likely a few others can now engage in widespread electronic espionage targeting whoever they deem fit. They can much more easily gather information to blackmail citizens of other countries to take actions against the interests of their own government, they can engage in corporate espionage, and if it came to it they could use these powers in potentially paralyzing electronic warfare. And there is always the risk that this power could be hijacked by terrorists.

As more countries, with varying commitments to civil liberties, gain surveillance capabilities an immediate concern is that they will abuse this new power against their own citizens. A collection of over 250 NGOs including Human Rights Watch and several Indian organizations recently put out a statement of principles on how human rights should be applied to surveillance programs. These principles are applicable to the interception of both domestic and extraterritorial communications and worth reading.

I think what's important to see in this struggle for the protection of privacy and the regulation of communications is that it will have to be part of a global movement. Getting the balance right is not an easy problem to solve and it throws up many conceptual and logistical challenges. How do we frame who is a reasonable target for surveillance by a foreign government (or a domestic one)? How do we ensure some degree of transparency and accountability of governments' surveillance efforts? How do we create meaningful remedies against undue surveillance both domestically and across borders? How do we build privacy into the architecture of the web itself in a thoughtful and meaningful way? Yet, I think we are also uniquely up to solving these challenges. Despite all the genuine horrors and discouraging stories we see on the nightly news, the world has never been as peaceful, wealthy, or educated as it is today. It would be tragic if we decided at this moment in the world's history to set up surveillance states that spread distrust and paranoia, discouraged free speech and dissent, and threatened to undercut the social fabric of a world that so many have fought so hard to make an open and tolerant place.

(Update: The Hindu has another article out today on NSA snooping detailing how the NSA has not been just picking up meta-data on Indian communications, but "listening in" on Indian conversations at the highest levels of government - including discussions about politics and India's nuclear and space programs. The article points out that Indians, like all foreigners, have no recourse or protection from these intrusions by the NSA. It also suggests that some of the spying might be motivated by U.S. corporate interests. Despite their plausible?/self-serving? protests that they resisted the NSA's intrusions into their users privacy, U.S. tech companies already worry that the NSA scandal will cost them billions as non-American users become suspect of their products.  Revelations like these in India and Brazil may complicate trade more broadly between U.S. companies and other countries as governments fear that U.S. companies are gaining an unfair advantage through NSA spying - note: these accusations don't have to be true to have broader trade ramifications, such an improper commercial relationship just needs to appear plausible.)   

NUJS Law Review: Special Issue “Surveillance, Censorship & Indian Law: Mapping the Field”

The NUJS Law Review is pleased to invite contributions for its annual Special Issue for 2013-14 “Surveillance, Censorship & Indian Law: Mapping the Field”

A spate of recent events, such as the debate surrounding Section 66A of the Information Technology Act and the Intermediaries Guidelines under it, the calls against decriminalizing speech offences (such as sedition, obscenity or defamation) in both traditional and new media, the debate around the Central Monitoring System, the NAT GRID and CCTNS in India (and the Snowden affair globally) have thrown the effect of state action (including legislation) on the fundamental rights to free speech, privacy and due process into sharp relief.

This issue proposes to engage with key questions surrounding the state of speech and privacy rights in India, in light of existing and improving capacities of both state and non-state entities to engage in activities that restrict these rights. We welcome contributions engaging with state and non-state led censorship and surveillance arising across the Indian media, whether physical or virtual, and with the sufficiency and effectiveness of existing laws to govern them. Submissions may address censorship in any medium (press, broadcasting, film or new media) and surveillance of any type (whether of persons, physical property or of communications).

Information for Contributors
All contributions must be sent to the Board of Editors of the NUJS Law Review at nujslr@gmail.com on or before December 15, 2013.

Authors are welcome to write to the Board of Editors to check the suitability of their proposed papers prior to their submission of finished drafts by the Submissions Deadline.

IT Act Under Challenge

The blog of the Centre for Communication Governance over at NLU-Delhi has a nice roundup on recent challenges to the IT Act, which the Supreme Court has decided to lump together and hear in January. Relevant posts can be found here and here. Given how much both government restriction on internet freedom (think NSA) and the ability of the internet to be used to spread rumors or incite hatred has been in the news as of late this promises to be an important case worth watching closely.

Some thoughts on the Judicial Appointments Commission

As Nick points out in his post, the proposed Judicial Appointments Commission (“JAC”) has generated a great deal of debate. In this post, I make two arguments: first, irrespective of its composition, the JAC will not be able to substantially affect the structural independence of the judges of the Supreme Court of India; instead, the JAC will be able to affect the independence of High Court judges; second, in the light of the court’s history, it is highly unlikely that the JAC will fundamentally alter the character of the typical candidate appointed to the Supreme Court of India:

1. Independence of the Judiciary:

To my mind, irrespective of the composition of the JAC, the JAC will most likely not be able to affect the structural independence of the Supreme Court. It must be remembered that when a judge is appointed to the Supreme Court of India, s/he holds office not during the “pleasure” of the government (or the JAC) but during “good behavior” – a doctrine which predates even the constitution [“good behavior” was finally introduced in India formally under the Government of India Act, 1935, though it was a formal principle in the UK since the Act of Settlement in 1701]. A Supreme Court judge in India can only be removed for “proved misbehaviour or incapacity” [Art. 124]. Even under the Indian High Courts Act, 1862 (i.e., even during the British Raj), a judge’s compensation could not be altered to his disadvantage after his appointment. Under the constitution [Art. 125], a Supreme Court judge’s privileges and allowances can’t be altered to the judge’s disadvantage after his appointment. In short, a Supreme Court judge has security of tenure and reasonable security of compensation: two of the most basic features of judicial independence.

However, there are two ways in which a government can potentially interfere with the independence of a Supreme Court judge: first, by superseding independent judges (e.g. what was done to Justices Shelat, Hegde, Grover, and Khanna); second, by not giving independent judges post-retirement jobs. The establishment of the JAC will not make a difference to either of these two mechanisms. The “seniority norm” is a deeply entrenched part of our constitutional history since independence, and given what happened during the Emergency, it is unlikely that our political culture will ever allow any government (or a JAC) to supersede an independent judge again. Post-retirement jobs are anyway controlled by the executive government at the moment, so the establishment of the JAC doesn't make the judges of the Supreme Court any worse off on this count.

One might argue that if the JAC has a majority of executive members on it, it may be able to appoint “committed” or pliant judges to the Supreme Court. While this is possible, it is also true that most of the judges appointed to the Supreme Court of India before the collegium system came into being, were staunchly independent of the executive. After all, judges like Vivian Bose, Subba Rao, Hidayatullah, Krishna Iyer, and even H.R. Khanna, were not appointed under the collegium system.

In short, the JAC will not be able to affect the independence of the judiciary at the Supreme Court level. Debates about the JAC, therefore, should focus on how its establishment will affect the independence of High Court judges. This is because the JAC will be able to decide whether a High Court judge gets “promoted” to the Supreme Court – as such, it will have the power to penalize or reward an independent High Court judge, though it will not be able to penalize or reward an independent Supreme Court judge.

2. Composition:

Will the JAC make a radical change to the type of candidate one sees on the Supreme Court of India? I’m skeptical that we will see a tremendous change in the background of the typical candidate appointed to the Supreme Court after the JAC. In my thesis at Stanford (a summary is available here), I found that there were three informal eligibility criteria used to appoint Supreme Court judges: age, seniority, and diversity.

The first criterion is that a judge should be of the age of 55 or above in order to be appointed to the Supreme Court – this is entirely a product of the collegium system, and it might change under the JAC. Even so, the youngest judge to be appointed to the Supreme Court of India was Justice Bhagwati, who was appointed, before the collegium system, not in his 30s like Joseph Story, but at the age of 51. Therefore, even if the JAC is set up, we are unlikely to see judges appointed to the Supreme Court in their 30s or 40s, though we may start seeing judges occasionally being appointed in their early 50s once again.

The second criterion is that only High Court Chief Justices (or, in exceptional cases, the most senior judges of High Courts) are eligible to be appointed to the Supreme Court. The emphasis on seniority has become stricter under the collegium’s watch. Earlier, far fewer Supreme Court judges were High Court Chief Justices, but now, an overwhelming majority of Supreme Court judges are High Court Chief Justices. However, it is highly unlikely that the JAC will abandon seniority altogether. Even before the collegium system, judges who were elevated to the Supreme Court were usually relatively senior judges on their High Courts. For example, Justice A.N. Grover, a puisne High Court judge who was appointed to the Supreme Court in 1968, was third in seniority in the Punjab High Court [Gadbois, Judges of the Supreme Court of India, p. 134]. It is therefore likely that the JAC will continue to use seniority as a criterion in appointing judges, though perhaps not as strictly as the collegium uses it at present.

The third criterion is that judges should reflect the regional (and demographic) diversity of India. This is a criterion which predates the collegium. Even before the collegium came into being, judges on the Supreme Court came from the different regions of India (a judge is said to belong to the High Court where s/he was first appointed, irrespective of place of birth, residence, or mother tongue). Despite the coming into being of the collegium system, diversity continued to be a criterion for judicial appointments to the Supreme Court. The establishment of the JAC will not obliterate this criterion, though priorities on diversity may change, i.e. religion, caste, and gender might rise in importance. For example, we may see more Muslim judges being appointed to the Supreme Court in the coming years (where only 2 out of 50 judges appointed to the court in the 2000s were Muslim judges). 

However, the JAC might be able to change a few incidental features of the court’s composition. If the JAC is set up, for example, we may see a “bar judge” being appointed to the court, on occasion. Since Justice Santosh Hegde retired in 2005, no lawyer has directly been appointed to the Supreme Court of India. Even before the collegium came into being, however, only 3 out of more than 100 Supreme Court judges were lawyers directly appointed to the Supreme Court. Thus, while it is highly unlikely that we will see a substantial number of lawyers being directly appointed to the Supreme Court bench as a result of the setting up of the JAC, we may perhaps see one lawyer (perhaps two) being directly appointed to the Supreme Court in this decade. Under the JAC, we might even see a bar judge become the Chief Justice of India by the seniority norm (Chief Justice Sikri is the only such judge so far), though this is quite unlikely after the Kuldip Singh-Ahmadi episode of the court’s history. Likewise, the JAC may decide to appoint a “distinguished jurist” to the court: a result which the collegium system seems unlikely to deliver.  

In short, even if the JAC comes into being, it is highly unlikely that we will see 10 full-time law professors, transactional lawyers, or even practicing lawyers at the Bar, in their 40s, being directly appointed to the Supreme Court. My guess is that the fundamental character of the composition of the court will remain the same.

India Underreports Crime Because of Shortcoming in Published Data

Rukmini S has this piece in today's Hindu about how the National Crime Records Bureau systematically under reports crime in the country based on registered FIRs because it only tracks the principal offense. For example, in the Delhi rape case the incident was not tallied as a rape in national statistics, but only as a murder since this was the offence that carried the greater penalty. As a result, we don't really know how many rapes result in a FIR in the country - or for that matter how many robberies or kidnappings or other types of crime. The NCRB is quoted as saying they might improve the system in the future. The quote though sounded very vague and did not instill confidence that the NCRB is on top of this problem.

Part of the reason I think this article deserves special attention is that the shortcomings of statistical databases in India are rarely reported, but the numbers from these databases are frequently used in newspaper and other media reports to buttress important policy arguments. In my work on the Supreme Court I found numerous such instances of miscounting and categorization. A journal article I wrote on the workload of the Indian Supreme Court had to have several pages discussing the limitations of the data the Court collects. For example, thousands of Supreme Court admission matters are effectively counted twice - once as a defective unregistered matter and the second time as a cured registered matter. In the Supreme Court's Annual Report though they are all just lumped together under the category of admission matters. It's only if you dig more and are lucky enough to see the monthly statements on which the annual report is based that you discover this peculiar accounting method. However, the public - like in the case of the NCRB data - would have no idea how to correctly interpret the published data if they just read what the government releases.

Or take another example. The Supreme Court releases a publication called Court News which is suppose to give the public (and the government) the definitive accounting of the current status of the Indian judicial system. Every quarter it releases data on the institution, disposal, and backlog of cases in the Supreme Court, High Courts, and Subordinate and District courts. You will see these numbers (particularly the backlog numbers) quoted widely in the media. But what are they counting and not? You might think, well, they must be counting everything that's a matter somewhere in the judicial system. Well, yes and no. The issue is when it comes to tribunals. Thousands and thousands of cases go to all sorts of tribunals - tax, service, environment, etc. The trouble is that some of these matters are counted in the subordinate court numbers and others are not. Basically, if the administrative chain of command of the tribunal is to the High Court then it reports its numbers and they are eventually tallied in Court News under subordinate courts. If they don't report (administratively) to the High Courts, then these numbers are not counted anywhere in Court News. As a result, we don't really know how many cases are pending in the Indian judicial system because a whole bunch of matters are missing from these larger tallies in Court News and no one has gone around to collect them independently. But again, you wouldn't realize this from reading Court News.  

An even greater problem with the Court News data is that we don't know how many of these matters in the judicial system are even contested. In 1925 the British released the Rankin Committee report on the status of the judiciary in India. They found that, for example, only 10% of cases in the Bengal courts were contested. In the almost 90 years since, as far as I know, there has been no publicly available report on how many cases are contested or uncontested in India. It likely isn't that uncontested cases account for 90% of the caseload today as they did in 1925, but uncontested matters probably do account for a very large number of cases - think about all the uncontested traffic tickets or other minor cases that go through the lower courts with no challenge. The point is that one would need to know the number of contested vs. uncontested matters to have a general sense of what the workload of the courts are today. Even better would be to know when cases are being filed and how long it takes them to be resolved. Either way, this isn't available publicly.

Now I don't think that NCRB or the Indian Supreme Court releases data that is easy to misinterpret because they are trying to be malicious or fool the public. I think instead it's because those in government who collect data do so in a rote way. They are told to tally cases and pass them on to their superiors. Their superiors are often collecting data in whatever way was in place before they got to their position and they don't have the time or inclination to change the data collection systems. Over the years I have met several people within the system who have recognized these types of problems and are trying to make the necessary changes, but they are fighting institutional momentum and there are few rewards for them even if they do succeed.

Given the current and highly visible challenge India is facing with sexual violence, it makes news when a good reporter uncovers that the NCRB rape numbers are off because of an accounting issue, but the large majority of instances of fuzzy data released by the government won't grab widespread attention (I am under no illusion that the Indian media will suddenly find it a worthy story to report that the Indian Supreme Court has been sloppy in how it publishes data on admission matters). Yet, informed public debate requires data that is both reliable and understandable. As Vrinda Grover suggests in the Hindu article what is needed is greater transparency and access to the government databases on which publicly released data is based. India has a growing number of scholars who have the skills and inclination to sort through raw government data to see where errors or misinterpretations might be creeping into the publicly released results. It's time that such communities of scholars - and the public more broadly - are tapped for this task. It will go a long way in making government more legible and so more accountable.

Judicial Appointments

There has been a lot of news - and controversy - lately about the Constitution (99th amendment) Bill that would replace the current judicial collegium with a judicial appointments commission (JAC), which under the Judicial Appointments Commission Bill would consist of the Chief Justice of India, the two next most senior Supreme Court judges, the Law Minister, and two "eminent persons" appointed by a body that would consist of the Chief Justice, the Prime Minister, and the leader of the opposition.

There have been several pieces of commentary in the media critical of this framework. Madhav already pointed out MR Madhavan's piece in the Indian Express, was also this piece by Arun Mohan Sukumar in the Hindu, and see this piece on the Indian Journal of Law and Society blog by Vasujith Ram. I'm sure there are many others out there in newspapers and across cyber-space.

A few quick thoughts:

1. I think most commentators find the current collegium system less than ideal. There is a strong feeling that it's become too cloistered, too enmeshed in in-group judge politics, and not transparent enough. There have been concerns expressed that judges who should have been elevated to the Supreme Court were not and vice versa. There is heavy (although not complete) reliance on seniority norms for elevation of judges to the Court. As many have pointed out this is likely not the sign of a healthy system. If your argument for why you should be appointed to the Supreme Court and not someone else is your birthday than we are not really assessing what's most important about being a judge. Instead, the reliance on seniority signals that no one trusts anyone's capacity to assess quality and so better to have a seniority norm than allow favoritism. Now the collegium system and heavy reliance on seniority may be less than ideal, but that does not mean it's untenable or even that it's worse than the other available alternatives.
2. On its face the 99th amendment and JAC Bill seem like a pretty decent alternative. The judiciary would still have the predominant voice in choosing judges, but the government and term-limited appointed experts would also have a voice. This would arguably increase transparency and open up the famously enclosed world of the judges to a little bit more accountability. Most critiques though (understandably) center once again on trust. Under the 99th amendment Parliament would be able to change the composition of the JAC by passing another bill, which would not require another constitutional amendment. So although the composition of the JAC today tilts in favor of the judges it might not tomorrow. An activist government could potentially change the JAC however it wanted, perhaps using the pretext of an unpopular Supreme Court judgment.
3. How real you find this threat I think has to do with how entrenched you feel constitutional morality is in India (to borrow from Vasujith Ram's piece quoting Ambedkar). If you do not believe Parliament will respect the separation of powers going forward or that the public would act as a check on an over-zealous government than you are clearly worried and think either the entire JAC is a bad idea (better for appointment of judges to remain with unelected judges) or that the composition of the JAC should be entrenched in the Constitution. There is also a personal value judgment - how insulated do you believe institutions should be from the people and their representatives. (On a side note, I do think it's odd that the JAC is currently conceived of as 6 members. The opportunity to have a tie on a vote concerning the appointment of a potential judge is likely asking for trouble).
4. The 99th amendment and the JAC bill spell out a lot about the potential future of judicial appointments in India, but even if both are adopted many questions are still left unanswered. The JAC bill states that the JAC will have the power to spell out the rules by which it operates. It's unclear if there will be the opportunity for public hearings or feedback during the appointment process, whether shortlists will be made public, or what process perspective judges will go through - interviews, hearings, etc. As far as I know there also has not been any proposal about what the JAC's budget should be. One of the primary problems the collegium currently faces is being able to collect reliable information about all the potential nominees for a judgeship. The judges certainly don't have time to do it themselves. There needs to be considerable infrastructure and staff in place to aid any JAC in sorting through fact and fiction about potential judges and assessing their record.

The challenge of judicial accountability is often conceptualized as one of who will guard the guardians. If the Court is suppose to check the abuses of the government, who will check the abuses of the Court. If an organization is set up to check the abuses of the Court who will then check that organization. It's often portrayed as an endless game of Russian dolls. This seems clearly an incorrect way to theorize the problem. First of all, an institution like the JAC that draws members from a diverse set of constituencies is in turn held accountable by the diverse interests of these constituencies. Second, the obvious answer to who guards the guardians is the people. The more active, engaged, and public minded a citizenry and the more ways they have to exert their power in a constructive way the less one has to worry about the abuse or potential abuse of any one institution.

A Compromise over Land

In an Op Ed published in today’s New Indian Express, I analyse the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, recently passed by both Houses of Parliament. I argue that the Bill remedies with varying success three out of the four main problems experienced with the application of the Land Acquisition Act, 1894.  I note that the ever-expanding definition of “public purpose” for which land could be forcibly acquired, the misuse of the “urgency” clause, massive displacement of poor peasants and traditional communities with inadequate or no compensation, and delays in completion of acquisition procedures, were principally responsible for the injustices caused by acquisition under the 1894 Act. I then describe how and to what extent the Bill remedies these problems. Finally, I raise concerns with certain provisions of the Bill, particularly the exemption clause. I conclude as follows:

 “Land acquisition is inevitably a controversial issue in nations with land scarcity which are trying to achieve rapid economic development through greater industrialisation. India is no exception. The Bill passed in Parliament is a compromise between various conflicting interests. So, it hasn’t pleased anyone completely. Yet compromise is intrinsic to the nature of a constitutional democracy. The Land Acquisition Bill is a step in the right direction for ushering in a culture of justification, wherein the government is required to explain and engage with the people it dispossesses of their land and livelihood of the legitimacy and necessity of such dispossession. Ultimately, however, the text of the law, though empowering in many ways, can only go so far in ensuring fairness in land acquisition proceedings. The real test is its effective implementation. But for that, we need serious institutional reform at all levels.”

The full text of the Op Ed can be accessed here. My previous writings on the Land Acquisition Bill can be accessed here.

New book on torture

Nitya Ramakrishnan, well-known Supreme Court lawyer, has authored a book, In custody: Law, Impunity and Prisoner abuse in South Asia (Sage).  The following extracts are from the publisher's website:

In Custody examines the professed and actual commitment to custodial justice on the part of six South Asian countries. India, Pakistan, Bangladesh, Nepal, Sri Lanka and Afghanistan have all been affected by the geopolitics of colonialism. Nineteenth century Europe is often simplistically seen as the ideological source of the rights discourse in South Asia. But, like any ideological theme, the discourse on rights is also a negotiated space. Resistance created a need to justify imperialism by importing a purpose to it. Regulation of policing was the coloniser's superior norm, and also, his tool of control.

The erstwhile colonies inherited the practice of affirming norms while systems enabled their breach. Which is not to say that the purpose of norms is merely hypocritical; political struggles and intellectual discourse have, over the years, ensured the recognition of human rights in international instruments, national charters and even in the very pretexts for their breach. Though human rights are inalienable, the modern state has been uniformly guarded in its response to their imperatives. This book traces the historical and contemporary nature of the conflict between the norm and its practice. Constitutions, statutes and mechanisms of justice are reviewed with case studies and interviews that illustrate the many layers of impunity.

The contents of the book, as found here, are very promising.  Today's The Hindu carries an interview with her by Prashant Jha. Another interview is here.

Judicial Appointments

M R Madhavan, President of PRS Legislative Research, has an excellent piece in the Indian Express regarding the proposed system of judicial appointments and the importance of further debate on this vital matter. Available here.

In defence of self-regulation

 The launch of the second edition of Madhavi's book recently in New Delhi created quite an excitement about the contents of the book, with Soli Sorabjee, who has written the foreword, describing it as an encyclopedia of media law.  With as many as 17 detailed chapters and up-to-date references to the latest case law on the subject, the compliment is fully justified.  At least two of the speakers - Arun Jaitley and Swapan Das Gupta - told the author that she has to prepare herself for the book's imminent third edition, with changes taking place at a rapid rate in the media scene of the country.  Other speakers included Soli Sorabjee, Justice Aftab Alam and the Chief Justice of India, Justice Sathasivam.

Readers may find this review of the book, and that of D.D.Basu's Law of the Press useful.

SC Update: Matters to be heard by Constitution Benches in September 2013

Guest Post by Manish G.

 

On 22.08.2013, the Supreme Court Registry issued a notice listing certain pending matters before a Constitution Bench that will commence hearings w.e.f. 03.09.2013. The list is nearly ten pages long and broadly involves five sets of cases. This post takes a look at these and briefly summarises the points of law involved in each.

The first set of cases (Hardeep Singh v. State of Punjab, Crl. A. No. 1750/2008 and others) turn on the interpretation of s. 319 of the Code of Criminal Procedure, 1973 (Cr.P.C.), which deals with the trial court’s power to proceed against any person other than the accused, if it appears from the evidence that such person has committed the offence. These matters arise out of a reference from a three-judge Bench (way back in December 2011), which noted a conflict between the views of various earlier three-judge Benches regarding the interpretation of s. 319 [Dharam Pal v. State of Haryana, (2004) 13 SCC 9; Ranjit Singh v. State of Punjab, (1998) 7 SCC 149; Kishun Singh v. State of Bihar (1993) 4 SCC 392], and framed the following questions for reference to a larger Bench:

(i) What is the stage at which power under Section 319 of the Code of Criminal Procedure,1973 can be exercised?
(ii) Whether the word "evidence" used in Section  319(1)  of the     Code       of   Criminal Procedure, 1973 could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) of  the     Code of Criminal Procedure, 1973 has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
(iv)      What is  the   nature      of    the satisfaction required to invoke the power under Section 319 of the Code of Criminal Procedure to arraign      an   accused? Whether the   power     under Section      319(1)      of       the     Code       of   Criminal Procedure, 1973  can be exercised only if the court   is  satisfied that  the accused summoned will in all likelihood be convicted?
(v) Does the power under Section 319 of  the Code of Criminal Procedure, 1973 extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

It should be noted that question (v) above has already been answered (in the affirmative) by another Constitution Bench in Dharam Pal v. State of Haryana (July 2013), where the Bench affirmed that it was Kishun Singh and not Ranjit Singh that espoused the correct position of law in this regard. While this question is thus rendered redundant, it will be interesting to note the effect, if any, that decision has on the present Bench, given that the correctness of Kishun Singh vis-a-vis Ranjit Singh is also in question here.

The second set of cases (Lalita Kumari v. Govt of U.P., W.P. (Crl.) No. 68/2008 and others) is of critical importance in clarifying the position on whether an officer in charge of a police station, upon receiving information regarding a cognisable offence, is mandated to register an FIR under s. 154 of the Cr.P.C., or whether the officer has the discretion to conduct a preliminary enquiry before registering an FIR. The case arose out of a reference from a three-judge Bench which noted inconsistencies between several earlier Benches, and directed that “In view of the divergent opinions in  a  large  number  of cases decided by this Court, it has become extremely  important  to  have  a clear enunciation of law and adjudication by a larger Bench  of  this  Court for the benefit of all concerned - the courts,  the  investigating  agencies and the citizens.” The pronouncement of the Court in this matter is sure to be eagerly watched by prosecutors, defence lawyers and the police.

The third matter (Sarah Mathew v. Institute of Cardiovascular Diseases, Crl. A. No. 829/2005) is a single case on the issue of computation of the limitation period in criminal cases. The case arises out of a reference from a three-judge Bench which doubted the correctness of the decision in Krishna Pillai v. T.A. Rajendran, 1990 (Supp.) SCC 121, and also raised the issue of its non-consideration by later two-judge Benches [Bharat Damodar Kale v. State of A.P., (2003)  8  SCC  559;  Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394]. The view taken in the latter two cases, which has been referred to the Constitution Bench for affirmation, is essentially that “for the purpose of computing the  period of limitation, the relevant date must be considered  as the  date  of filing of complaint or the institution of prosecution and not the date of taking cognizance by a Magistrate  or  issuance of process by  a Court”.

The fourth matter (Swasthya Raksha Samiti Rati Chowk v. Chaudhary Ram Harakh Chand, C.A.No.1391/1999) is also a single case, the oldest of all the matters under consideration by the present Bench. It arises out of a 2002 judgment of a three-judge Bench, which was itself a reference from an earlier two-judge Bench. The issue turns on the nature of enquiry to be conducted by the Collector under Rule 4(2)(iii) of the Land Acquisition (Companies) Rules, 1963, in cases where land is being compulsorily acquired for a company under Chapter VII of the Land Acquisition Act, 1894 (LAA). In view of the conflicting views expressed in earlier cases (Shyam Nandan Prasad v. State of Bihar, 1993 (4) SCC 255, State of Gujarat v. Patel Chaturbhai Narsibhai, 1975 (1) SCC 583; Babu Barkya Thakur v. State of Bombay, 1961 (1) SCR 128] as to whether such an enquiry was mandatory or whether it could be subsumed by the regular enquiry to hear objections under s. 5A of the LAA (which takes place in all land acquisition proceedings), the matter has been placed before the Constitution Bench. The case is expected to have ramifications on pending land acquisition proceedings all over the country.

The fifth and final set of cases (Kone Elevator India Pvt. Ltd. v. State of T.N., W.P.(C). No. 232/2005 and others) are a series of service tax matters involving the determination of whether sale and installation of lifts constitutes a contract of sale or a works contract for the purposes of taxation. The view of a three-judge Bench in State of Andhra Pradesh v. Kone Elevators (India) Ltd. (February 2005), which held that these were contracts of sale and not works contracts since the installation was incidental to the sale, appears to have been called into question in all these cases. Clearly, this case will be critical in determining what regime of taxation appears to transactions involving the sale and installation of lifts across the country.

The composition of the Bench is not yet known. Given that the cases involve diverse aspects of law (three criminal, one land acquisition and one taxation), it will probably be as interesting to observe the Judges who form part of this Bench, as much as the deliberations and judgments on these critical matters.

 

Manish G. is a Researcher at the National Law University, Delhi

Uncertainty Again Over the Constitutionality of the Right to Education Act: Could it have been Avoided?

With almost no news attention a three judge bench of the Supreme Court agreed last week that a petition challenging the Right to Education Act should be heard by five-judges later this year. As many might remember, a bench of three judges of the Supreme Court upheld the Right to Education Act, and it's quota of 25% for less privileged families in private schools, in a judgement written in April of 2012 by Chief Justice Kapadia. The petition heard last week, brought by different petitioners, essentially makes the same challenge to the Right to Education Act, but claims that the April 2012 judgement should have been heard by five judges not three because it involved a substantial question of constitutional law and that the majority judgment did not adequately consider all appropriate caselaw when it came to its decision.

Last week's order referring the matter to five judges by Chief Justice Sathasivam is incredibly short. In fact, it provides no reasoning nor any history of the present petition (which I understand was filed sometime last year).

Although last week's order gives no reasoning as best as I can tell it basically represents the Supreme Court admitting that it messed up. What's so troubling is that all of this was an entirely foreseeable outcome of having the original case heard by just three judges. This issue of judge strength was raised during the initial challenge to the Right to Education Act, but the judges sitting on the matter then decided to continue to hear it anyway (albeit with the consent of the present parties). For some time now there have been concerns raised about both the constitutionality and prudence of the Supreme Court hearing major constitutional matters with less than five judges. A matter like the Right to Education Act case deserved to have at least five judges thinking through the different legal and policy implications of their judgement (not to mention the Indian Constitution arguably demanding at least five judges). It is admirable that the Supreme Court has now decided this matter requires at least five judges, but the damage has already been done. The Indian public - and Indian schoolchildren - once again face the situation in which a core tenant of the education policy of the entire country has been thrown into a state of uncertainty.

Perhaps even more troubling is that so many major constitutional cases of the last twenty years were heard with less than five judges. Should Indian lawyers and the Indian public now doubt their validity? Could they be open to challenge? I don't think it makes sense to point fingers, a set of structural and institutional culture pressures have brought the Court to where it now finds itself, but I do think the Court needs to explicitly take on this issue and make clear under what situations constitution benches are required and how this policy will apply both retroactively and prospectively. Currently there seems to be too much uncertainty over judge strength and this leads to uncertainty in the Court's jurisprudence and as a consequence unneeded uncertainty in the interpretation and functioning of India's laws and policies.

The Changing Debate Over Personal Laws in India

The current issue of the Frontline magazine focuses on the changing debate over personal laws. In the lead story, I argue that the fragmentation of religious authority, greater debate within communities, and growing awareness of women have made the older debates over the Uniform Civil Code largely irrelevant.

The story also follows litigation by Goolrookh Gupta, who has challenged the decision by the local Parsi Panchayat to exclude women married to non-Parsis from entering the fire temple. An interview with Goolrookh provides an insight into how individual litigants take the decision to take on their community leaders.

V.Venkatesan writes on the recent judgments on live-in relationships and its implications for marriage, maintenance and prevention of domestic violence. This is followed by an interview with Justice Karnan who gave the judgement on pre-martial sex.

Another story focuses on the diverse strategies adopted by various Muslim women's groups in Tamil Nadu, including petitioning the High Court to curb the rights of qazis, pushing for greater codification of Muslim law (as opposed to an UCC) and the creation of all-women jamaats to resolve disputes. Finally, I write on the growth of Dar-ul-Qaza's, and draw on recent research by Prof Jeff Redding, to argue that institutional pluralism is compatible with the constitutional order.

The History of the Jury in India

Kalyani Ramnath has recently published an excellent article that traces the history of the jury system in India.

The Colonial Difference between Law and Fact: Notes on the Criminal Jury in India

This article tracks the rise and fall of criminal jury in colonial India through official and non-official debates, discussions and interventions. The discussion on criminal juries in the Anglo-American system has typically focused on the division of legal labour between judge and jury. In colonial India, this conventional difference between ‘law’ and ‘fact’ were shaped by notions of belonging to a different race, religion and language. These were frequently articulated as the story of the ‘unreliable’ juror or the ‘religious’ native who feared eternal damnation. From the jurors who were allegedly intoxicated by the publicity over the infamous Nanavati trial to women jurors who claimed to be followed on the way home from court, to the religious Brahmin juror who would not swear an oath, the story of the criminal jury is peopled with anxieties over undesirable forms of influence, that impinge on legal impartiality. Using the criminal jury as a lens, I look at the claims of universal legal reform as particularly lending themselves to contestations over sovereignty.

An earlier version of her arguments can be found here

New Resources on Legal History

My colleague Fei-Hsien Wang and I have been developing a set of digital resources for those interested in legal history, particularly of Asia. The website, hosted by the Centre for History and Economics, University of Cambridge is developing a directory of scholars, has a growing database of digital resources, a section on reading legal sources and a set of interviews with legal historians.

Of particular interests to scholars working on India, will be the section on digital archives and interviews with authors of recent works on South Asian legal history, including Ritu Birla, Rachel Sturman and Mitra Sharafi. 

Teacher Performance in Law Schools

Sidharth Chauhan has this piece out in Bar & Bench on assessing teacher performance in law schools. As he points out although there are many excellent law teachers in Indian law schools there are also many many sub-par ones. The thrust of his argument seems to be that student appraisal of law professors should be considered more in the assessment of law faculty by the administration. It is hard to disagree with this general point - I think more it's a question of how much these assessments should count and in what situations.

As Chauhan points out there are clear limitations to student assessment. I remember an economics teacher I had in college that was an entertaining and thought-provoking lecturer and received high marks from students. It was only later that I realized how much he was trying to indoctrinate his pupils into a certain kind of economics and never exposed us to key counter viewpoints. Maybe this made him less of a teacher. Maybe not. But I certainly wasn't in the best position to appraise him at the time with my limited knowledge of the subject. I remember another professor who ruthlessly marked up a paper I wrote - exposing all sorts of shortcomings (in reasoning, in the structure of the paper, in grammar). The gloves were off. I appreciated the criticism at the time, but I also felt the style of his criticism had been harsh and don't think I marked him as highly as other professors. In retrospect, his style probably was indeed harsh, but I learned more from that assignment than from many other professors who put lots of supportive comments that boosted my self-esteem and who I likely assessed higher. Life is full of unforgiving criticism and sometimes it's on point - A useful lesson and one that understandably students aren't always immediately receptive to.

And then there is the perennial problem that Chauhan describes of bad teachers who grade lightly (or give light assignments) so as to endear themselves to students and so get high marks in their appraisals. (Chauhan's suggested solution to this problem - to have students give their appraisal before they receive a final grade - is at best a partial answer as many classes have assignments/exams in which grades are given during the semester and in general I have found better teachers grade more harshly on assignments during the semester than the final in order to push students to work harder while they are still taking the class.)

I think the takeaway is that students are rather good at figuring out who are absolutely horrible teachers - those who put little effort into instruction, don't know the topic, don't have office hours, don't seem to care, are continuously rude or disrespectful. Pinpointing such teachers from student appraisal can be a helpful tool for the administration. Student appraisal can also potentially be useful for professors' self-improvement - although having read many appraisals of my classes I can say that I can only take so much away from comments that read "Amazing Class!" or "Boring . . . " (to be fair, I never knew what to write on those things as a student either). Instead, what seems more important is creating a culture in which good teaching is part of professors identity and they strive to make their classes better for that reason. Student voted awards for "best professor of the year" can be useful. So can comments from peers in the faculty and administration who approvingly pass on positive feedback they heard about your class. Sessions where professors share teaching techniques or innovative curriculum design may also build up pride (and more knowhow) amongst faculty about their teaching. In the end though you have to make sure that there are talented professors being hired in the first place. If they are talented, they will want to improve at teaching - they spend so many hours doing it - or at the very least be considered competent (maybe they fancy themselves a terrific researcher instead). One of the great joys and rewards of the academy is teaching students and seeing how in some small way you might have impacted their life. If you are hiring professors that had the option to go into other lines of work, but eschew the higher pay and other perks to go into teaching instead, they will certainly want to reap these benefits of their chosen profession - or they would be silly not to.

Paper on Grievance Redress for Social Welfare Programs in India

Implementation challenges are one of the most pressing legal problems in India today. There are many laws and policies on the books that in reality are under-implemented (often dramatically), whether these are traffic regulations or rules surrounding telecom allocation. Plausible causes of this problem are numerous and include corruption, resource constraints, administrative apathy, and broader cultural norms. In other words, the problem of poor implementation is big and complex.

In this UPenn CASI working paper – “Complaining to theState: Grievance Redress and Social Welfare Programs in India” – I take on this problem from one narrow angle by looking at the implementation of social welfare programs. In the paper, I only examine the mechanisms by which citizens complain to the state. Obviously, there are many other ways to tackle poor implementation including better policy design, better-trained administrators, better internal auditing, etc. Still, a good grievance redress system seems an important ingredient as well.

I wrote this paper – which is based off of field research in Bihar and Madhya Pradesh – for a number of reasons, but I think the most important for this forum is that I found that Indian legal scholarship (and indeed legal scholarship in general) had not produced the conceptual frameworks or analytical tools needed to address the implementation challenges a country like India faces. When lawyers in India think about implementation problems (and possible remedies) they usually do so through the framework of public interest litigation. If a program isn’t working file a PIL and then use the resulting court orders and media attention to implement the program as best as possible.  This has been and can be a useful strategy in many situations. However, if we limit ourselves to just thinking about PIL or courts (or even rights), my sense is that we are missing out on a lot.  There are big changes afoot in the Indian administrative state and we need to understand them if we want to be good advisors in how to construct institutions, craft policy interventions, or just decide when to file a PIL or take some other route.

If people are interested in the argument of the paper they can read the abstract and the introduction/section one, but here’s the basic idea: When I approached this problem years ago I was a bit overwhelmed and confused by all the different ways people complained to the state – this paper tries to create a more coherent descriptive and theoretical narrative using the idea of accountability regimes developed in the administrative law literature in the US and elsewhere. There is an understandable fixation on rights and courts by lawyers, and a cost-benefit analysis prism by many policy types, and although in some instances these are often the best normative prism to approach grievance redress problems, I don’t think they are the best descriptive prism.  In some ways this is obvious. A right is a tool, not a description of what’s happening. Same with CBA. Yet, I find often the literature focuses on describing how these tools are being wielded instead of the larger institutional story about how chains of accountability are being shaped. These are not mutually exclusive stories, but they are different. This paper tries to prod along the administrative law literature in India to face this and begin to develop a suitable descriptive theory of what is happening.

Just a couple years ago I would say the literature in this area was practically non-existent or at best fledgling. However, there has been increasing interest by legal (and other) academics in the area of accountability and implementation around social welfare programs. Azim Premji University’s Law, Governance, and Development Initiative recently hosted a conference on the Right to Welfare in India (you can find blog posts summarizing presentations at the conference here). Jayanth Krishnan et al have an interesting and well-researched paper out that surveys how the lower courts do (to some extent) and could (to a much larger extent) enforce social and economic rights. I’m sure as time goes on there will be more and more contributions in this area both descriptively and normatively, which will hopefully contribute to producing an ever more accurate and useful picture of what is happening in India’s administrative state.