Tuesday, August 27, 2013

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.

Wednesday, August 21, 2013

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. 

Tuesday, August 20, 2013

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.

Monday, August 19, 2013

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.

Parliamentary Obstruction: VP calls meeting to change rules

The Vice-President has called an all-party meeting to discuss changes in Rajya Sabha rules which will facilitate the House to function smoothly. As I have argued in this article in the Seminar, obstruction in our Houses of Parliament are already rule-violating (unlike the filibuster in the United States, which is tolerated by the rules of proceedings). Parliamentary rules also vest the Chair with a significant (some might say, even draconian) amount of power to enforce them.

The reason why these rules have remained unenforced is that they rely on a politically weak office of the Chairperson/Speaker for enforcement. Every attempt to do so requires the Chair to identify the offending MPs, and inevitable invites allegations of partisanship. Enforcement attempts thus become yet another reason for disruption, and are completely counter-productive.

The Seminar article also outlines the very heavy price our democracy has been paying because of frequent parliamentary disruption. In particular, the most consultative and democratic of institutions has been paralysed, and power has shifted considerably to the less accountable parts of the state--the judiciary and the Executive (some have noticed the phenomenon in the United States too).

Of course, part of the solution to the problem of dysfunctional legislatures is political. Our political culture has come to accept obstruction as normal, and not just by the Opposition. Even the governing party has used it to escape legislative scrutiny. However, some clever rules may aid the process of changing this culture. I proposed certain strategies in the Seminar article, excerpted below. At least some of them can be achieved by simple amendments to parliamentary rules or the Salary, Allowances, and Pension of Members of Parliament Act 1954.

There are two strategies that need to be pursued simultaneously to deal with the problem of plenary bottleneck. The first strategy is to reduce the number of motions that require plenary time. Constitutional provisions and the value of democracy impose limits on how far this strategy can be employed. Primary legislation must be enacted in plenary sessions. However, the role of legislative committees – which tend to be more productive than plenary sessions – in examining secondary legislation (rules) proposed by the executive can be strengthened. Further, much plenary time is wasted in determining what procedure should be followed to debate non-legislative accountability-seeking motions.
For example, the winter session of the Lok Sabha in 2012 lost several working days due to obstruction over whether the legislative debate on the executive’s decision to allow foreign investment in retail should take place under a rule which allows voting or one which doesn’t. It will be much better to adopt a standard rule. It could be provided that all accountability motions should be amenable to voting, at least in the Lok Sabha, where the government can be expected to be confident of its majority – or face political embarrassment when it doesn’t. Alternatively, a multiparty parliamentary committee could be empowered to conclusively determine the matter before the start of parliamentary sessions.

A second strategy is to deal with obstructions directly and increase available plenary time. Since obstruction is already rule violating, creating new rules to forbid it will be pointless. For the same reason, making rules allowing majorities to surmount it will not be any good either. The only way to deal with obstruction is to make it costly. The political costs for the obstructers will rise only when at least some major parties become thoroughly non-obstructionist, support the reforms outlined below, and seek political distinction on that basis. The legal costs will increase only if Speakers start enforcing the rules that prohibit obstruction. For the politically weak office of the Speaker, it is hard enough to suspend the odd obstructing MP. Mass suspensions are practically impossible. Effective costs will have to be automatic (i.e. not require any action on the part of the Speaker) and collective (costs targeted at obstructing members will necessarily require prior identification by the Speaker, and therefore likely to be ineffective).

Withholding the daily allowance of all legislators on days when a House is obstructed is one way to impose an automatic and collective, if relatively small, cost. Another option is to require that every House must sit for at least a hundred ‘qualifying’ days every year – a day qualifies only if a minimum of five obstruction free hours were spent on legitimate business. If time wasted during obstruction doesn’t count, it will make obstruction costly enough to become sufficiently unattractive – except perhaps in the rarest of rare cases that Arun Jaitley defends. Together, these collective costs may get our legislatures working again.

Sunday, August 18, 2013

Gadbois Interview

Some readers might be interested in Livelaw's interview with George Gadbois, a contributor to this blog, who talks about his book "Judges of the Supreme Court of India: 1950-1989". The interview provides some background about why George was in a position to interview these judges during trips to India in the 1960's and 1980's, and why - thankfully - he finally decided to publish it. Of particular interest to some readers he weighs in on who he thinks were the best Chief Justices and Justices of the Court during its first four decades. He also points to several prominent senior lawyers who turned down positions on the Court - perhaps cementing an unfortunate tradition in which the best legal talent did not always agree to serve. The book is well worth reading and chronicles a period in the Court's early history with a descriptive richness that otherwise would likely have been lost.

Friday, August 9, 2013

Researcher Position at the Centre for Policy Research for project on "Land Rights, Environmental Governance and Inclusive Sustainable Development"

Position: Researcher for Project titled, “Land Rights, Environmental Governance and Inclusive Sustainable Development in India” at the Centre for Policy Research, New Delhi. 
Qualifications Required:  Undergraduate and law degrees. Candidates must possess excellent research and writing skills.
Expected tasks:  Legal research and writing, creating a database of union and state laws pertaining to land rights and environmental issues in the Project states (Gujarat, Andhra Pradesh and Meghalaya), planning and organizing a startup workshop for the Project in January 2014 in New Delhi

Interested candidates should submit their CVs and a writing sample not exceeding 10 pages to namita.wahi@gmail.com

Thursday, August 8, 2013

The Impracticality of Jan Chaukidar

We bring you a guest post from Shambo Nandy, a recent graduate of the West Bengal National University of Juridical Sciences who now works with Raju Ramachandran, a leading Supreme Court counsel. 

The judgment of the Supreme Court in Chief Election Commissioner v Jan Chaukidar has been criticised by many. While some have condemned it as being open to severe misuse, others have assailed the correctness of the order. While these fears are warranted, I feel that the judgment in its current form suffers from another vice, viz. impracticality. The judgment says that a person who is confined in a prison or in the lawful custody of the police, loses the right to vote, and is disqualified from contesting elections. In other words, since he is not a voter he cannot stand for elections, being disqualified under s. 62(5) of the Representation of People Act, 1951. Consequently, even undertrials (who are in the lawful custody of the police) will now be debarred from standing for elections. The judgment is problematic as it gives rise to several possibilities all of which is riddled with its own share of problems and this makes it impractical to implement. 

As we know, before any election the Election Commission notifies not only the dates on which elections will be held and the results declared, but it also lists the dates by which nominations will be accepted and withdrawn. Usually there is a 2-4 days gap between the last date for submitting nomination papers and the date for the withdrawal of candidatures. After this date, the elections are invariably conducted within a month's time. 

Now for example, let us say that a candidate has submitted his nomination papers. It has been scrutinized and the date of withdrawal of candidatures is also over. Subsequently, the Election Commission has also published his name in the list of candidates from that particular constituency. It has also published the ballot papers and the Electronic Voting Machines have been readied. In doing all of these, substantial time and effort has been spent and elections are only a week away. At this stage, what happens if a candidate is arrested? Will his name still be struck off from the list of candidates? If yes, then will it be done at the risk of countermanding elections (as is done if a candidate dies during this stage)? 

Normally, when the police receive a cognizable complaint, it does not arrest a person without conducting a preliminary investigation. However, in certain cases the police make an immediate arrest; a complaint under s. 498A of IPC is one such instance where arrests are immediately made. The same holds true for other cases where complaints involve allegations of grave offences and some evidence or eye witness exists. Hence, in all such cases where arrests are immediately made, what happens to the fate of the candidate? Can his name be struck off when his name has already been published amongst the list of candidates and election is just a few days away? Is it possible that the candidate can remain among the list of candidates, but all the votes obtained by him will be declared to be invalid? 

The Patna High Court in its judgment in 2004 had stated that the name of the candidate should be struck off forthwith and in such cases the Election Commission can “decide what action to take, even if it be countermanding the elections wherever such persons have participated as candidates.’’ However, if this suggestion of the High Court is accepted by the Election Commission (since the Supreme Court has not added anything new), then that would entail sufficient wastage of time and monetary resources. Moreover, in many situations countermanding elections will lead to unnecessary delay in the formation of the government. These are not alarmist apprehensions; there are several instances at present to point out that these fears may well turn out to be true in the recent future. For example, the ruling coalitions in both the states of Kerala and Uttarakhand have a wafer-thin majority. In a future election in Kerala, if election to a particular seat has to be countermanded because of the Jan Chaukidar judgment, and if both the coalitions muster up 70 seats each (total number of seats being 141), then we will face a hung assembly for some time. Normal government activities which involve expenditure will be held up till the result of that one seat comes out. Such a long time gap may also see a spurt in dirty horse trading activities as we have previously seen in Bihar and Jharkhand. While the example is only of Kerala, such a situation can arise in many other states which have lesser seats in their legislative assemblies. 

Another problematic area which would arise if elections are countermanded would be if the candidate in lawful custody gets bail the day after the Election Commission notifies countermanding of election to that seat. The candidate can contest again from that seat and countermanding elections in such a case will be farcical. Countermanding elections, in effect, will be a boon for lawyers as during elections there will be an exponential increase in bail matters. 

The other option is also not devoid of criticism. If the Election Commission adopts it, i.e. of declaring the candidate’s votes as invalid, then the real winner will not be the true representative of the people. India follows the ‘first past the post system.’ Often a candidate gets elected because there is a division of votes between the other parties. There is enough criticism as to how a candidate getting as low as thirty per cent of the total number of votes gets elected. Hence, declaring a candidate’s votes as invalid will further complicate the situation as the votes obtained by him could have been split between the first two candidates and a different winner could have arisen. To illustrate, let us take into account a scenario where the difference in votes obtained between the first two candidates is 3000 and the candidate who is in lawful custody gets 5000 votes. Now, these 5000 invalid votes could have gone to either of the first two candidates (with some votes going to the other candidates in the fray) and there is a possibility that the person coming second could have been the winner. This possibility will always arise in cases where the total number of votes obtained by the candidate in lawful custody is more than the victory margin of the winning candidate. 

This confusion could have been easily put to rest if the Supreme Court had given a more reasoned judgment in stead of just saying that “we do not find any infirmity in the findings of the High Court.” Surely, it did not spend too much time analyzing the practical problems that this judgment would create. If it had, then the Court could have easily avoided a lot of confusion by proposing a realistic solution which would fulfil the intention of the court if in case situations such as those mentioned in the preceding paragraphs arose. 

Unlike the Supreme Court, the Patna High Court cannot be faulted for not giving a reasoned judgment. Unfortunately, it was not properly assisted by the counsels appearing for either the Election Commission, or the Central and State Governments. In fact, the court puts it on record that the Advocate General “kept away from the Court” when he was issued notice. It sadly notes that no “responsible report” was left with the Registrar General of the High Court on whether criminals or persons in the lawful custody of the police have entered the arena of elections. 

The Supreme Court could have agreed with the High Court’s decision but at the same time should have been more articulate in its reasoning. This is reasonable to expect in cases such as this, where fundamental matters relating to the functioning of our democratic system are decided. Since brevity is not a characteristic feature of court judgments, one can only wonder as to why the Supreme Court made this an aberration. This hurried judgment is also a reflection of the Supreme Court’s paucity of time in writing judgments. 

On the point of questions of law, like the Supreme Court, the Patna High Court too has made the same mistake that Anup Surendranath has pointed out on this blog – that of conflating the denial of voting rights under s. 62(5) of the 1951 Act and the disqualification of being on an electoral roll under s. 16(1)(c) of the 1950 Act. Probably, if the parties to the case had seriously contested the case offering an “in depth analysis” of their own to the High Court, this mistake would have come to the fore and we would have been spared a wrong and impractical judgment. Similarly, the Supreme Court ought to have heard the Union of India and other interested parties such as political groups who will be directly affected by this judgment. A lackadaisical attitude amongst all the parties is majorly responsible for this. 

Since the Patna High Court has left it open to the Election Commission on the course of action, it will be interesting to see its response as and when it is confronted with such a situation.

Wednesday, August 7, 2013

How Magan Lal was Almost Executed This Morning!

Strange are the things that can save a human being's life -- and it is a Times of India news report that saved Magan Lal from being executed this morning (Thursday, 8th August) in Jabalpur Central Jail. It was by sheer chance that anti-death penalty lawyers stumbled upon the ToI news item last evening, which triggered legal proceedings to stay the execution.

The report also indicated that the President had rejected Magan Lal's mercy petition on 22nd July 2013. Magan Lal clearly did not have the opportunity to challenge the rejection of his mercy petition and there is no clarity on whether his family had indeed received information of his execution.

Acting on the news report, PUDR filed a PIL late last evening before the CJI at his residence seeking a stay on the execution. A stay was granted (at about 11pm) until this morning when it will be the first matter to be heard in the CJI's court. It is likely to be argued that Magan Lal's execution be stayed until he has the opportunity to challenge the rejection of his mercy petition. Clearly the CJI was unwilling to hear the matter along with other death penalty matters listed for hearing starting 22nd October 2013, when a constitution bench will attempt to provide judicial clarity on the impact of delay in deciding mercy petitions. Magan Lal's mercy petition was rejected after it was kept pending for 1.5 years.

Magan Lal was sentenced to death by the Sessions Judge, Sehore in February 2011 for murdering all five of his daughters (from his two wives) aged between 1 - 6 years. The High Court of Madhya Pradesh confirmed the sentence in September 2011 and the Supreme Court, through Justices HL Dattu and CK Prasad, dismissed the SLP and denied leave to appeal in January 2012.

Magan Lal's stay came with less than 6 hours remaining for his execution and that should undoubtedly be a relevant issue in future proceedings. The fact that Magan Lal came so close to being executed must necessarily weigh against deciding another date for his execution. It would take a very insensitive Court to ignore Magan Lal's mental agony as a result of this experience and if another date for execution is permitted, the Court will have to necessarily demonstrate why that does not amount to cruelty and torture.

Magan Lal's case is another example of the broken machinery of administering the death penalty in India, where individuals are increasingly executed before being given the opportunity to exhaust all their legal options.

UPDATE (8th August 2013): Magan Lal's petition will now be heard with the 22nd October set of cases and the stay has been extended accordingly.

Sunday, August 4, 2013

Reading Lily Thomas and Jan Chaukidar Together: Logically a Strange & Dangerous Result?

--> Guest Post: Vasujith Ram

Recently in Lily Thomas v Union of India, the Court held that Section 8(4) of the Representation of People Act, 1951 (RPA) was ultra vires the Constitution.

To begin with, the Court held that, from the “affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution … the Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature.” The Court added that the “provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature” (see para 20).

On the basis of the above two reasons, the Court held Section 8(4) of the RPA, which defers the date on which the disqualification of a sitting member will take effect, to be ultra vires the Constitution.
Before we proceed, it is important to note the Court’s observation that “if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature” (para 16). This is based on the semantics of Art. 102(1) and Art. 191(1), which state that “[a] person shall be disqualified for being chosen as, and for being, a member of either House of Parliament…”. This is affirmed in Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) in which it has been held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member.

Now let’s move on to CEC v Jan Chaukidar. The judgment says that a person who is confined in a prison or in the lawful custody of police, loses the right to vote (S. 62(5) of RPA), and is hence disqualified from contesting elections. The reasoning is that a person who has no right to vote is disqualified from registering in the electoral rolls (S. 16(1)(c) of RPA), implying that he/she is not an ‘elector’ (S. 2(1)(e) of RPA) – which is one of the qualifications for “being chosen to fill a seat” of the House of the People and a Legislative Assembly of a State (S. 4(d) and 5(c) of RPA).

In other words, according to the judgment, if a person is in police custody, for reasons stated above, he/she does not fulfil the “qualification for membership of the House of the People” under Section 4(d) and “qualifications for membership of a Legislative Assembly” under Section 5(c) of RPA. (“Disqualification on conviction for certain offences” is however laid down in S. 8 [as discussed in Lily Thomas], but those disqualifications are only for certainoffences, which means, they person can be disqualified for other reasons as well). Therefore the person is disqualified from contesting elections.

Now, using both the Lily Thomas and the Jan Chaukidar logic, this means that a sitting MLA/MLC/MP is disqualified as well, if he/she is in police custody! This is because the parliament is vested with the powers to make one law, laying down the same disqualifications for sitting and contesting members. Since Jan Chaukidar held that a person in police custody does not fit the qualifications to be “chosen to fill a seat” of the House of the people or the Legislative Assembly, does this not mean that he/she cannot continue as member of Parliament or the State Legislature as well if he/she is taken in police custody? Additionally, para 16 of Lily Thomas (relevant portion quoted above), all but confirms this blog’s argument.

One must note that provisions of Art. 101(3)(a) and 190(3)(a), as expounded in Lily Thomas, only strengthens the point made in this blog post. The Parliament cannot defer the date from which disqualification will come into effect, so a sitting member in lawful custody (even if not convicted), is immediately disqualified!
- Vasujith Ram is a second year student at NUJS