tag:blogger.com,1999:blog-33745501897240172432024-03-04T23:39:21.540-08:00Jon De Freest LawAnonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.comBlogger26125tag:blogger.com,1999:blog-3374550189724017243.post-33838852290028027472013-09-27T03:28:00.000-07:002013-09-27T11:07:47.213-07:00And now, NOTA!<div dir="ltr" style="text-align: left;" trbidi="on">Supreme Court's <a href="http://supremecourtofindia.nic.in/outtoday/wp(c)No.161of2004.pdf">reasoning</a> 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:<br /><br />* The provision of secrecy must necessarily extend to NOTA<br />* Other countries have it.<br />* Our law-makers have the right to abstain<br />* NOTA will increase voter participation in democracy, as voters can send a message to parties.<br />* Not having NOTA will lead to impersonation of voters, as dissatisfied voters may abstain.<br />* 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?)<br /><br />These are my initial impressions. I am sure our readers will analyse the judgment further and share their perspectives in the coming days. </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com1tag:blogger.com,1999:blog-3374550189724017243.post-79862765887078381952013-09-25T06:49:00.000-07:002013-09-27T11:07:47.218-07:00The Delhi gang rape verdict<div dir="ltr" style="text-align: left;" trbidi="on"><span style="font-family: inherit;">In a piece titled "<a href="http://barandbench.com/content/capricious-noose-analysis-december-16-gang-rape-verdict#.UkLbM9LI4pI" target="_blank">A Capricious Noose</a><span id="goog_1064806812"></span><span id="goog_1064806813"></span><a href="http://www.blogger.com/"></a>" published on Bar and Bench, I analyze the Delhi gang rape sentencing verdict. In the <span style="background-color: white; color: #333333; font-size: 16px; line-height: 20px; text-align: justify;">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 </span><span style="background-color: white; color: #333333; font-size: 16px; line-height: 20px; list-style-type: none; margin: 0px; padding: 0px; text-align: justify;"><i>Ram Singh</i></span><span style="background-color: white; color: #333333; font-size: 16px; line-height: 20px; text-align: justify;"> 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.<i> </i></span></span></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-44734128370064237332013-09-22T22:31:00.000-07:002013-09-27T11:07:47.225-07:00The NSA in India: Time for an International Right to Privacy?<div dir="ltr" style="text-align: left;" trbidi="on">Today the Hindu has a major <a href="http://www.thehindu.com/news/national/india-among-top-targets-of-spying-by-nsa/article5157526.ece?homepage=true">story</a> 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 <a href="http://www.theguardian.com/world/2013/sep/17/brazil-president-snub-us-nsa">Brazil</a> that at times seems to even look like borderline corporate espionage (although the U.S. denies the last claim fervently). <br /><br />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 <a href="http://www.theguardian.com/world/the-nsa-files">here</a>.) 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 <a href="http://blogs.wsj.com/washwire/2013/08/23/nsa-officers-sometimes-spy-on-love-interests/">love interests</a>. <br /><br />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. <br /><br />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. <br /><br />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 <a href="http://www.nytimes.com/2013/09/22/opinion/sunday/close-the-nsas-back-doors.html">terrorists</a>. <br /><br />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 <a href="https://en.necessaryandproportionate.org/text">statement</a> 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. <br /><br />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 <a href="http://www.amazon.com/The-Better-Angels-Our-Nature/dp/1455883115">peaceful</a>, <a href="https://www.google.com/search?q=global+gdp+per+capita&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a">wealthy</a>, or <a href="http://www.google.com/imgres?imgurl=http://upload.wikimedia.org/wikipedia/commons/3/36/World-Literacy-Rate-1970to2015.TC.png&imgrefurl=http://commons.wikimedia.org/wiki/File:World-Literacy-Rate-1970to2015.TC.png&h=544&w=799&sz=40&tbnid=Cc6qKkU8K7zMZM:&tbnh=90&tbnw=132&zoom=1&usg=__yokEYaBTigqSr4EEutgPd6KkiEE=&docid=k8GdCl3JG6NJoM&sa=X&ei=GMs_Us-3Go_C4APxo4HIAg&ved=0CDoQ9QEwAQ">educated</a> 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.<br /><br />(Update: The Hindu has another <a href="http://www.thehindu.com/news/national/nsa-targets-indian-politics-space-nprogrammes/article5161299.ece?homepage=true">article </a>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 <a href="http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/07/nsa-snooping-could-cost-u-s-tech-companies-35-billion-over-three-years/">worry</a> 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.) </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-36844040607995469052013-09-20T13:39:00.000-07:002013-09-27T11:07:47.232-07:00NUJS Law Review: Special Issue “Surveillance, Censorship & Indian Law: Mapping the Field” <div dir="ltr" style="text-align: left;" trbidi="on">The NUJS Law Review is pleased to invite contributions for its annual Special Issue for 2013-14 “Surveillance, Censorship & Indian Law: Mapping the Field”<br /><br />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.<br /><br />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).<br /><br />Information for Contributors<br />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.<br /><br />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.<br /><div><br /></div></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-36038106820660102882013-09-20T06:28:00.000-07:002013-09-27T11:07:47.238-07:00IT Act Under Challenge<div dir="ltr" style="text-align: left;" trbidi="on">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 <a href="http://ccgnludelhi.wordpress.com/2013/09/20/supreme-court-adjourns-it-act-cases-for-final-hearing/">here</a> and <a href="http://ccgnludelhi.wordpress.com/2013/09/19/cases-in-which-indias-supreme-court-will-define-contours-of-free-speech-online/">here</a>. 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. </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-40393514359310838512013-09-13T00:54:00.000-07:002013-09-27T11:07:47.244-07:00Some thoughts on the Judicial Appointments Commission<div dir="ltr" style="text-align: left;" trbidi="on"><div class="MsoNormal">As Nick points out in his <a href="http://lawandotherthings.blogspot.com/2013/09/judicial-appointments_12.html">post</a>, 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:</div><div class="MsoNormal"><br /></div><div class="MsoNormal">1. Independence of the Judiciary:</div><div class="MsoNormal"><br /></div><div class="MsoNormal">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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">However, there are two ways in which a government can potentially interfere with the independence of a Supreme Court judge: first, by <span style="background-color: white;"><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2077494">superseding</a> </span>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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">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.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">2. Composition:</div><div class="MsoNormal"><br /></div><div class="MsoNormal">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 <a href="http://searchworks.stanford.edu/view/9753043">thesis </a>at Stanford (a summary is available <a href="http://www.frontline.in/cover-story/age-seniority-diversity/article4613881.ece">here</a>), I found that there were three informal eligibility criteria used to appoint Supreme Court judges: age, seniority, and diversity. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">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.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">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). </div><div class="MsoNormal"><br /></div><br /><div class="MsoNormal">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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">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.</div></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-77338231859424531372013-09-12T19:50:00.000-07:002013-09-27T11:07:47.250-07:00India Underreports Crime Because of Shortcoming in Published Data<div dir="ltr" style="text-align: left;" trbidi="on">Rukmini S has this <a href="http://www.thehindu.com/news/national/india-officially-undercounts-all-crimes-including-rape/article5121114.ece?homepage=true">piece</a> 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.<br /><br />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 <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2189181">article</a> 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.<br /><br />Or take another example. The Supreme Court releases a publication called <i><a href="http://supremecourtofindia.nic.in/courtnews.htm">Court News</a> </i>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 <i>Court News</i> under subordinate courts. If they don't report (administratively) to the High Courts, then these numbers are not counted anywhere in <i>Court News</i>. 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 <i>Court News</i> and no one has gone around to collect them independently. But again, you wouldn't realize this from reading <i>Court News</i>. <br /><br />An even greater problem with the<i> Court News</i> 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. <br /><br />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.<br /><br />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. </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-86604591999428511962013-09-11T16:20:00.000-07:002013-09-27T11:07:47.302-07:00Judicial Appointments <div dir="ltr" style="text-align: left;" trbidi="on">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.<br /><br />There have been several pieces of commentary in the media critical of this framework. Madhav already pointed out MR Madhavan's <a href="http://www.indianexpress.com/news/case-not-closed/1164724/0">piece</a> in the Indian Express, was also this <a href="http://www.thehindu.com/opinion/op-ed/no-better-judge-of-this-government/article5107583.ece?homepage=true">piece</a> by Arun Mohan Sukumar in the Hindu, and see this <a href="http://jilsblognujs.wordpress.com/2013/09/10/judicial-appointments-commission-who-will-guard-the-guards/">piece</a> 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.<br /><br />A few quick thoughts:<br /><br />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. <br />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.<br />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).<br />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.<br /><br />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. </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-41520965541432080462013-09-11T02:37:00.000-07:002013-09-27T11:07:47.310-07:00A Compromise over Land <div dir="ltr" style="text-align: left;" trbidi="on"> <br /><span lang="EN-US" style="mso-ansi-language: EN-US;">In an Op Ed published in today’s <a href="http://newindianexpress.com/" target="_blank">New Indian Express</a>, I analyse the provisions of the </span><span lang="EN" style="mso-ansi-language: EN;"><a href="http://www.prsindia.org//uploads/media/Land%20and%20R%20and%20R/LAAR%20Bill%20as%20passed%20by%20LS.pdf" target="_blank">Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill</a>, 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. </span><span lang="EN" style="mso-ansi-language: EN;">Finally, I raise concerns with certain provisions of the Bill, particularly the exemption clause. </span><span lang="EN" style="mso-ansi-language: EN;">I conclude as follows: <o:p></o:p></span><br /> <br /><span lang="EN" style="mso-ansi-language: EN;"><o:p> </o:p></span><span lang="EN" style="mso-ansi-language: EN;">“<i style="mso-bidi-font-style: normal;">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.”<o:p></o:p></i></span><br /> <br /><span lang="EN" style="mso-ansi-language: EN;">The full text of the Op Ed can be accessed <a href="http://newindianexpress.com/opinion/Compromise-over-land-takeover/2013/09/11/article1778031.ece?service=print" target="_blank">here</a>. My previous writings on the Land Acquisition Bill can be accessed <a href="http://lawandotherthings.blogspot.no/2013/02/land-acquisition-development-and.html" target="_blank">here</a>. <o:p></o:p></span><br /> </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-71909065468206517772013-09-05T23:53:00.000-07:002013-09-27T11:07:47.316-07:00New book on torture<div dir="ltr" style="text-align: left;" trbidi="on">Nitya Ramakrishnan, well-known Supreme Court lawyer, has authored a book, <i><a href="http://www.sagepub.in/books/Book240610?prodTypes=any&seriesId=Series1226&status=New&sortBy=defaultPubDate%2520desc&pageTitle=SAGE+Law">In custody: Law, Impunity and Prisoner abuse in South Asia </a></i>(Sage). The following extracts are from the publisher's website:<br /><br /><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhpKdpt2p2yIRaQrAlvSZ_Q1whSalhk94OTRFI8NDapnhqxf9yI_PLoCg6swmWQsVwM78MX4-3rEc_mK3xbJjX4couvuIsSnz3m3VbH2jFSvf538jZaeaOBzowM_lIcKjfSupMpxIpU16i8/s1600/50085_9788132109464w.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhpKdpt2p2yIRaQrAlvSZ_Q1whSalhk94OTRFI8NDapnhqxf9yI_PLoCg6swmWQsVwM78MX4-3rEc_mK3xbJjX4couvuIsSnz3m3VbH2jFSvf538jZaeaOBzowM_lIcKjfSupMpxIpU16i8/s320/50085_9788132109464w.jpg" width="195" /></a></div><b style="font-family: Arial, Verdana, 'Sans Serif'; font-size: 13px; line-height: 15px; text-align: justify;">In Custody</b><span style="font-family: Arial, Verdana, 'Sans Serif'; font-size: 13px; line-height: 15px; text-align: justify;"> 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.</span><br /><br style="font-family: Arial, Verdana, 'Sans Serif'; font-size: 13px; line-height: 15px; text-align: justify;" /><span style="font-family: Arial, Verdana, 'Sans Serif'; font-size: 13px; line-height: 15px; text-align: justify;">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.</span><br /><span style="font-family: Arial, Verdana, 'Sans Serif'; font-size: 13px; line-height: 15px; text-align: justify;"><br /></span><span style="font-family: Arial, Verdana, 'Sans Serif'; font-size: 13px; line-height: 15px; text-align: justify;">The <a href="http://www.sagepub.in/books/Book240610?prodTypes=any&seriesId=Series1226&status=New&sortBy=defaultPubDate%2520desc&pageTitle=SAGE+Law#tabview=toc">contents </a>of the book, as found here, are very promising. Today's <i>The Hindu</i> carries an<a href="http://www.thehindu.com/opinion/interview/torture-is-a-public-secret-expose-the-hypocrisy/article5097338.ece"> interview</a> with her by Prashant Jha. Another <a href="http://www.thehindu.com/features/metroplus/truth-versus-torture/article5100298.ece">interview is here</a><a href="http://here./">.</a></span></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-55692083821337988482013-09-05T05:49:00.000-07:002013-09-27T11:07:47.322-07:00Judicial Appointments<div dir="ltr" style="text-align: left;" trbidi="on">M R Madhavan, President of <a href="http://www.prsindia.org/" target="_blank">PRS Legislative Research</a>, 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 <a href="http://www.indianexpress.com/news/case-not-closed/1164724/0" target="_blank">here</a>.</div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-71834577759916114932013-09-04T03:32:00.000-07:002013-09-27T11:07:47.374-07:00In defence of self-regulation<div dir="ltr" style="text-align: left;" trbidi="on"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEixOjsH3KWOKuQo8mOdKpYfB4QoL4Rm_cjILdfiMoNAvKxVFJ_g5nMuXbvizTCUxxdO7IIB_nkNMpqqysM0MFDaUKJGsSFIuVdg4KM2T9ops6i-y4QG4JAvSmDBO1EuoQRl99f_GBn1qJnu/s1600/fl20_bk_VV_MEDIA1__1568785g.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEixOjsH3KWOKuQo8mOdKpYfB4QoL4Rm_cjILdfiMoNAvKxVFJ_g5nMuXbvizTCUxxdO7IIB_nkNMpqqysM0MFDaUKJGsSFIuVdg4KM2T9ops6i-y4QG4JAvSmDBO1EuoQRl99f_GBn1qJnu/s200/fl20_bk_VV_MEDIA1__1568785g.jpg" width="130" /></a></div> 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.<br /><br />Readers may find this<a href="http://www.frontline.in/books/governing-media/article5078921.ece"> review</a> of the book, and that of D.D.Basu's Law of the Press useful.<br /><div class="separator" style="clear: both; text-align: left;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj0fWkf4Hh9teSgWPLPQepIHz6S6doYMFiewLRQT2a4AyihVXWiJtVIErc8t3C1SUTSvCbGgkj7jU2VZCAtG0lvm9_nWntCMxBbkMJRCW8UthI6iaPygEUOh-gf-8U8IfqYUkP34lXtoodQ/s1600/fl20_bk_VV_MEDIA_2_1568784g.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj0fWkf4Hh9teSgWPLPQepIHz6S6doYMFiewLRQT2a4AyihVXWiJtVIErc8t3C1SUTSvCbGgkj7jU2VZCAtG0lvm9_nWntCMxBbkMJRCW8UthI6iaPygEUOh-gf-8U8IfqYUkP34lXtoodQ/s200/fl20_bk_VV_MEDIA_2_1568784g.jpg" width="137" /></a></div></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-18817739800982979432013-08-27T22:29:00.000-07:002013-09-27T11:07:47.428-07:00SC Update: Matters to be heard by Constitution Benches in September 2013<div dir="ltr" style="text-align: left;" trbidi="on">Guest Post by Manish G.<br /><br /><div dir="ltr" id="docs-internal-guid-525c49e8-c35a-8a49-6a8d-d0e1dcfb233a" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: center;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span> </div><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">On 22.08.2013, the Supreme Court Registry issued a </span><a href="http://sci.nic.in/outtoday/notice22082013.pdf" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">notice</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> 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.</span></div><br /><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span><br /><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">The first set of cases (</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Hardeep Singh</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Punjab</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, Crl. A. No. 1750/2008 and others) turn on the interpretation of </span><a href="http://www.vakilno1.com/bareacts/crpc/the-code-of-criminal-procedure-1973-crpc-2nd-page.html#319_Power_to_proceed_against_other_persons_appearing_to_be_guilty_of_offence" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">s. 319</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> 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 </span><a href="http://courtnic.nic.in/supremecourt/temp/ar%20175008p.txt" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">reference</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> 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 [</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Dharam Pal</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Haryana</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, (2004) 13 SCC 9; </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Ranjit Singh</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Punjab</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, (1998) 7 SCC 149; </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Kishun Singh</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Bihar</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> (1993) 4 SCC 392], and framed the following questions for reference to a larger Bench:</span></div><br /><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span><br /><div dir="ltr" style="line-height: 1.15; margin: 0pt 45pt 0pt 58.5pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">(i) What is the stage at which power under Section 319 of the Code of Criminal Procedure,1973 can be exercised?<br class="kix-line-break" />(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?<br class="kix-line-break" />(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?<br class="kix-line-break" />(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?<br class="kix-line-break" />(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?</span></div><br /><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span><br /><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">It should be noted that question (v) above has already been answered (in the affirmative) by another Constitution Bench in </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Dharam Pal</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Haryana</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> (</span><a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=40579" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">July 2013</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">), where the Bench affirmed that it was </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Kishun Singh</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> and not </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Ranjit Singh </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">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 </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Kishun Singh</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> vis-a-vis </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Ranjit Singh </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">is also in question here.</span></div><br /><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span><br /><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">The second set of cases (</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Lalita Kumari</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Govt of U.P.</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, W.P. (Crl.) No. 68/2008 and others) is of critical importance in clarifying the </span><a href="http://www.hindustantimes.com/India-news/NewDelhi/5-judge-bench-to-hear-FIR-case/Article1-818588.aspx" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">position</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> on whether an officer in charge of a police station, upon receiving information regarding a cognisable offence, is mandated to register an FIR under </span><a href="http://www.vakilno1.com/bareacts/crpc/criminal-procedure-code-1973.html#154_Information_in_cognizable_cases" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">s. 154</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> 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 </span><a href="http://courtnic.nic.in/supremecourt/temp/wr%2068rpt.txt" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">reference</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> from a three-judge Bench which noted </span><a href="http://judis.nic.in/temp/68200841692008p.txt" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">inconsistencies</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> between several earlier Benches, and directed that “</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">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.</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">” The pronouncement of the Court in this matter is sure to be eagerly watched by prosecutors, defence lawyers and the police.</span></div><br /><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span><br /><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">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 </span><a href="http://courtnic.nic.in/supremecourt/temp/ar%2082905p.txt" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">reference</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> from a three-judge Bench which doubted the correctness of the decision in </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Krishna Pillai</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">T.A. Rajendran</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, 1990 (Supp.) SCC 121, and also raised the issue of its non-consideration by later two-judge Benches [</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Bharat Damodar Kale</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of A.P.,</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> (2003) 8 SCC 559; </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Japani Sahoo</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v.</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> Chandra Sekhar Mohanty</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, (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 “</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">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</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">”.</span></div><br /><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span><br /><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">The fourth matter (</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Swasthya Raksha Samiti Rati Chowk</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Chaudhary Ram Harakh Chand</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, 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 </span><a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=26805" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">judgment</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> 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 </span><a href="http://dolr.nic.in/Acts&Rules/LandAcquisition(Companies)Rules1963.htm" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">Land Acquisition (Companies) Rules, 1963</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, 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 (</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Shyam Nandan Prasad</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Bihar</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, 1993 (4) SCC 255, </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Gujarat</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Patel Chaturbhai Narsibhai</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, 1975 (1) SCC 583; </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Babu Barkya Thakur</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Bombay</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, 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.</span></div><br /><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span><br /><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">The fifth and final set of cases (</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Kone Elevator India Pvt. Ltd.</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of T.N.</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">, 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 </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">State of Andhra Pradesh</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> v. </span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: italic; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Kone Elevators (India) Ltd.</span><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"> (</span><a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=26809" style="text-decoration: none;" target="_blank"><span style="background-color: transparent; color: #1155cc; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: underline; vertical-align: baseline;">February 2005</span></a><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">), 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.</span></div><br /><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span><br /><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">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.</span></div><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"></span> </div><div dir="ltr" style="line-height: 1.15; margin-bottom: 0pt; margin-top: 0pt; text-align: justify;"><span style="background-color: transparent; color: black; font-family: Arial; font-size: 15px; font-style: normal; font-variant: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"><em>Manish G. is a Researcher at the National Law University, Delhi</em></span></div></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-69001651696398590662013-08-27T09:18:00.000-07:002013-09-27T11:07:47.485-07:00Uncertainty Again Over the Constitutionality of the Right to Education Act: Could it have been Avoided?<div dir="ltr" style="text-align: left;" trbidi="on">With almost no news attention a three judge bench of the Supreme Court <a href="http://www.telegraphindia.com/1130824/jsp/nation/story_17267131.jsp#.UhzDyFPgJqB">agreed</a> 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 <a href="http://articles.timesofindia.indiatimes.com/2012-04-13/india/31337167_1_unaided-minority-schools-free-education-86th-constitutional-amendment">upheld</a> 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.<br /><br />Last week's order referring the matter to five judges by Chief Justice Sathasivam is incredibly <a href="http://courtnic.nic.in/supremecourt/temp/wc%2041612p.txt">short</a>. In fact, it provides no reasoning nor any history of the present petition (which I understand was filed sometime last year). <br /><br />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 <a href="http://judis.nic.in/temp/9520103692010p.txt">decided</a> to continue to hear it anyway (albeit with the consent of the present parties). For some <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883272">time</a> now there have been <a href="http://www.indianexpress.com/news/bigger-bench-please/959194/0">concerns</a> 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. <br /><br />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. </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-43746593535084404612013-08-21T02:56:00.000-07:002013-09-27T11:07:47.537-07:00The Changing Debate Over Personal Laws in India<div dir="ltr" style="text-align: left;" trbidi="on"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi0DNUh8dTR3GmsAeZRdNZ6JkvzMEGy2OISFLWN_Y7hXnKf41lNq0EuZLTGUqJRvM7e4BKxEk3ULRjRAzD7lBfuavkKjI2cftaG_lhfUwol30ZGYfJ4AtZrWFrUBz7q85VKbccRBrVa2LOK/s1600/Frontline_cover_ta_1557190b+(1).jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi0DNUh8dTR3GmsAeZRdNZ6JkvzMEGy2OISFLWN_Y7hXnKf41lNq0EuZLTGUqJRvM7e4BKxEk3ULRjRAzD7lBfuavkKjI2cftaG_lhfUwol30ZGYfJ4AtZrWFrUBz7q85VKbccRBrVa2LOK/s1600/Frontline_cover_ta_1557190b+(1).jpg" /></a></div><br /><br />The current issue of the Frontline magazine focuses on the changing debate over personal laws. In the l<u><a href="http://www.frontline.in/cover-story/personal-laws-a-reality-check/article5037670.ece">ead story</a></u>, 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.<br /><br />The story also follows l<a href="http://www.frontline.in/cover-story/wresting-rights/article5037757.ece">itigation by Goolrookh Gupta,</a> who has challenged the decision by the local Parsi Panchayat to exclude women married to non-Parsis from entering the fire temple. An <a href="http://www.frontline.in/cover-story/the-panchayat-is-inconsistent/article5037756.ece">interview </a>with Goolrookh provides an insight into how individual litigants take the decision to take on their community leaders.<br /><br />V.Venkatesan writes on the<a href="http://www.frontline.in/cover-story/ends-vs-means/article5037707.ece"> recent judgments</a> on live-in relationships and its implications for marriage, maintenance and prevention of domestic violence. This is followed by an<a href="http://www.frontline.in/cover-story/ambiguities-and-clarifications/article5037721.ece"> interview</a> with Justice Karnan who gave the judgement on pre-martial sex.<br /><br />Another story <a href="http://www.frontline.in/cover-story/taking-on-patriarchy/article5037878.ece">focuses on</a> 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 <a href="http://www.frontline.in/cover-story/alternative-fora/article5037680.ece">write on the growth of Dar-ul-Qaza's</a>, and draw on recent research by Prof<a href="http://slu.edu/colleges/law/slulaw/faculty/jreddin3"> Jeff Redding</a>, to argue that institutional pluralism is compatible with the constitutional order.</div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-72454612188944503522013-08-21T02:32:00.000-07:002013-09-27T11:07:47.589-07:00The History of the Jury in India<div dir="ltr" style="text-align: left;" trbidi="on">Kalyani Ramnath has recently published an excellent <a href="http://ier.sagepub.com/content/50/3/341.full.pdf+html">article</a> that traces the history of the jury system in India.<br /><br /><br /><h1 id="article-title-1" itemprop="headline" style="background-color: white; border: 0px; color: #403838; font-family: Arial, Helvetica, sans-serif; font-size: 1.8em; line-height: inherit; margin: 10px 0px 0px; outline-style: none; padding: 0px; vertical-align: baseline;">The Colonial Difference between Law and Fact: Notes on the Criminal Jury in India</h1><br /><span style="background-color: white; color: #403838; font-family: Arial, Helvetica, sans-serif; font-size: 13px; line-height: 19px; text-align: justify;">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.</span><br /><span style="background-color: white; color: #403838; font-family: Arial, Helvetica, sans-serif; font-size: 13px; line-height: 19px; text-align: justify;"><br /></span><span style="background-color: white; color: #403838; font-family: Arial, Helvetica, sans-serif; font-size: 13px; line-height: 19px; text-align: justify;">An earlier version of her arguments can be found <a href="http://www.mylaw.net/Article/Unsuitable_for_Indian_conditions/">here</a></span></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-58454622316076766062013-08-21T02:26:00.000-07:002013-09-27T11:07:47.641-07:00New Resources on Legal History<div dir="ltr" style="text-align: left;" trbidi="on">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 <a href="http://www.histecon.magd.cam.ac.uk/history-law/index.html">website</a>, hosted by the <a href="http://www.histecon.magd.cam.ac.uk/">Centre for History and Economics, University of Cambridge</a> 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.<br /><br />Of particular interests to scholars working on India, will be the section on <a href="http://www.histecon.magd.cam.ac.uk/history-law/south_asia.html">digital archive</a>s and interviews with authors of recent works on South Asian legal history, including <a href="http://www.history.utoronto.ca/faculty/facultyprofiles/birla.html">Ritu Birla</a>, <a href="http://www.bowdoin.edu/faculty/r/rsturman/">Rachel Sturman</a> and <a href="http://law.wisc.edu/profiles/sharafi@wisc.edu">Mitra Sharafi. </a></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-32031206854049839772013-08-20T18:14:00.000-07:002013-09-27T11:07:47.692-07:00Teacher Performance in Law Schools<div dir="ltr" style="text-align: left;" trbidi="on">Sidharth Chauhan has this <a href="http://barandbench.com/content/assessing-teacher-performance-law-schools-problems-and-prospects#.UhNkgFPgLX9">piece</a> 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.<br /><br />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.<br /><br />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.)<br /><br />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. </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-10327289489421398952013-08-19T18:42:00.000-07:002013-09-27T11:07:47.745-07:00Paper on Grievance Redress for Social Welfare Programs in India<div dir="ltr" style="text-align: left;" trbidi="on"> <style><!-- /* Font Definitions */ @font-face {font-family:"MS 明朝"; mso-font-charset:78; mso-generic-font-family:auto; mso-font-pitch:variable; mso-font-signature:1 134676480 16 0 131072 0;} @font-face {font-family:"Cambria Math"; panose-1:2 4 5 3 5 4 6 3 2 4; mso-font-charset:0; mso-generic-font-family:auto; mso-font-pitch:variable; mso-font-signature:-536870145 1107305727 0 0 415 0;} @font-face {font-family:Cambria; panose-1:2 4 5 3 5 4 6 3 2 4; mso-font-charset:0; mso-generic-font-family:auto; mso-font-pitch:variable; mso-font-signature:-536870145 1073743103 0 0 415 0;} /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-unhide:no; mso-style-qformat:yes; mso-style-parent:""; margin:0in; margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:12.0pt; font-family:Cambria; mso-ascii-font-family:Cambria; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"MS 明朝"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Cambria; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} .MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; font-family:Cambria; mso-ascii-font-family:Cambria; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"MS 明朝"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Cambria; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} @page WordSection1 {size:8.5in 11.0in; margin:1.0in 1.25in 1.0in 1.25in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} --></style> <br /><div class="MsoNormal">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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">In this UPenn CASI working paper – “<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2312647">Complaining to theState: Grievance Redress and Social Welfare Programs in India</a>” – 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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">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. <span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">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. <span style="mso-spacerun: yes;"> </span>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. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">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 <a href="http://azimpremjiuniversity.edu.in/lgdi/">here</a>). Jayanth Krishnan et al have an interesting and well-researched <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297152">paper</a> 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. </div></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-60943833008299417722013-08-19T02:23:00.000-07:002013-09-27T11:07:47.797-07:00Parliamentary Obstruction: VP calls meeting to change rules<div dir="ltr" style="text-align: left;" trbidi="on">The Vice-President has <a href="http://www.thehindu.com/news/national/ansari-calls-allparty-meet-to-ensure-smooth-proceedings-in-rs/article5037941.ece">called an all-party meeting</a> to discuss changes in Rajya Sabha rules which will facilitate the House to function smoothly. As I have argued in <a href="http://india-seminar.com/2013/642/642_tarunabh_khaitan.htm">this article in the Seminar</a>, 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.<br /><br />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.<br /><br />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 <a href="http://www.nytimes.com/2013/08/14/opinion/the-real-price-of-congresss-gridlock.html?_r=0">noticed the phenomenon in the United States</a> too).<br /><br />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 <a href="http://rajyasabha.nic.in/rsnew/msa_section/mpsalary.pdf">Salary, Allowances, and Pension of Members of Parliament Act 1954</a>.<br /><br /><br /><div align="JUSTIFY"><i><b><span style="font-family: Times New Roman; font-size: large;">T</span></b><span style="font-family: Times New Roman;">here 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.</span></i></div><div align="JUSTIFY"><i>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.</i></div><div align="JUSTIFY"><br /></div><div align="JUSTIFY"><i><b><span style="font-family: Times New Roman; font-size: large;">A</span></b><span style="font-family: Times New Roman;"> 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. <b>Effective costs will have to be <u>automatic</u> (i.e. not require any action on the part of the Speaker) and <u>collective</u> (costs targeted at obstructing members will necessarily require prior identification by the Speaker, and therefore likely to be ineffective).</b></span></i></div><i><span style="font-family: Times New Roman;"></span><b><span style="font-family: Times New Roman; font-size: large;"></span></b><span style="font-family: Times New Roman;"></span></i><br /><div align="JUSTIFY"><i>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.</i></div><br /><br /></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-84268250540436510532013-08-18T05:08:00.000-07:002013-09-27T11:07:47.851-07:00Gadbois Interview<div dir="ltr" style="text-align: left;" trbidi="on">Some readers might be interested in Livelaw's <a href="http://www.livelaw.in/conversation-with-professor-george-h-gadbois-jr-a-distinguished-scholar-of-indian-law-and-judicial-behaviour/">interview</a> 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. </div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-76486261485182839282013-08-09T02:49:00.000-07:002013-09-27T11:07:47.902-07:00Researcher Position at the Centre for Policy Research for project on "Land Rights, Environmental Governance and Inclusive Sustainable Development"<div dir="ltr" style="text-align: left;" trbidi="on"><div style="background-color: white; color: #222222; font-family: arial, sans-serif; font-size: 12.727272033691406px; margin: 0cm 0cm 10pt;"><span lang="EN-US"><span style="font-size: small;"><span style="color: black;"><span style="font-family: Calibri;">Position: Researcher for Project titled, “Land Rights, Environmental Governance and Inclusive Sustainable Development in India” at the Centre for Policy Research, New Delhi. </span></span></span></span></div><div class="im" style="background-color: white; color: #500050; font-family: arial, sans-serif; font-size: 12.727272033691406px;"><span style="color: black; font-family: Times New Roman; font-size: small;"></span></div><div style="background-color: white; color: #222222; font-family: arial, sans-serif; font-size: 12.727272033691406px; margin: 0cm 0cm 10pt;"><span lang="EN-US"><span style="font-size: small;"><span style="color: black;"><span style="font-family: Calibri;">Qualifications Required: Undergraduate and law degrees. Candidates must possess excellent research and writing skills.</span></span></span></span></div><div style="background-color: white; color: #222222; font-family: arial, sans-serif; font-size: 12.727272033691406px; margin: 0cm 0cm 10pt;"><span lang="EN-US"><span style="font-size: small;"><span style="color: black;"><span style="font-family: Calibri;">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</span></span></span></span></div><div class="im" style="background-color: white; color: #500050; font-family: arial, sans-serif; font-size: 12.727272033691406px;"><span style="color: black; font-family: Times New Roman; font-size: small;"></span></div><span style="background-color: white; color: black; font-family: Times New Roman; font-size: small;"></span><br /><div style="background-color: white; color: #222222; font-family: arial, sans-serif; font-size: 12.727272033691406px; margin: 0cm 0cm 10pt;"><span lang="EN-US"><span style="font-size: small;"><span style="color: black;"><span style="font-family: Calibri;">Interested candidates should submit their CVs and a writing sample not exceeding 10 pages to <a href="mailto:namita.wahi@gmail.com" style="color: #1155cc;" target="_blank">namita.wahi@gmail.com</a></span></span></span></span></div></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-91871820296260298712013-08-08T07:40:00.000-07:002013-09-27T11:07:47.956-07:00The Impracticality of Jan Chaukidar<div dir="ltr" style="text-align: left;" trbidi="on"><div style="text-align: justify;"><span style="font-family: 'Trebuchet MS', sans-serif;">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. </span></div><span style="font-family: Trebuchet MS, sans-serif;"><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The judgment of the Supreme Court in <a href="http://www.scribd.com/doc/153188350/Supreme-Court-on-Jailed-Politicians">Chief Election Commissioner v Jan Chaukidar</a> has been criticised by many. While some have condemned it as being <a href="http://economictimes.indiatimes.com/opinion/comments-analysis/judicial-over-reach-liberty-a-gift-of-the-law/articleshow/21075421.cms">open to severe misuse</a>, others have <a href="http://lawandotherthings.blogspot.in/2013/07/the-error-in-cec-v-jan-chaukidar.html">assailed the correctness of the order</a>. 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 <a href="http://www.vakilno1.com/bareacts/rpstpeople1951/rpstpeople-2.html#Section_62_Right_to_vote">s. 62(5)</a> of the <a href="http://lawmin.nic.in/legislative/election/volume%201/representation%20of%20the%20people%20act,%201951.pdf">Representation of People Act, 1951</a>. 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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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)? </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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 <a href="http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode.html#Section_498_Enticing_or_taking_away_or_detaining_with_criminal_intent_a_married_woman">s. 498A of IPC</a> 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? </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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 <a href="http://www.historylearningsite.co.uk/first_past_the_post.htm">‘first past the post system.’</a> 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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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 <a href="http://lawandotherthings.blogspot.in/2013/07/the-error-in-cec-v-jan-chaukidar.html">pointed out on this blog</a> – 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. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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.</div></span></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-78429773012582711002013-08-07T15:33:00.000-07:002013-09-27T11:07:48.010-07:00How Magan Lal was Almost Executed This Morning!<div dir="ltr" style="text-align: left;" trbidi="on">Strange are the things that can save a human being's life -- and it is a <a href="http://timesofindia.indiatimes.com/city/bhopal/Man-who-beheaded-5-daughters-to-be-hanged-by-Kasabs-executioner-tomorrow/articleshow/21680050.cms" target="_blank">Times of India news report</a> 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.<br /><br />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. <br /><br />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.<br /><br />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. <a href="http://indiankanoon.org/doc/66106540/" target="_blank">The High Court of Madhya Pradesh confirmed the sentence </a>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.<br /><br />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.<br /><br />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.<br /><br /><i><b>UPDATE </b>(8th August 2013): </i>Magan Lal's petition will now be heard with the 22nd October set of cases and the stay has been extended accordingly.<br /><br /><br /><br /><br /></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0tag:blogger.com,1999:blog-3374550189724017243.post-66798621036567783992013-08-04T16:54:00.000-07:002013-09-27T11:07:48.063-07:00Reading Lily Thomas and Jan Chaukidar Together: Logically a Strange & Dangerous Result?<div dir="ltr" style="text-align: left;" trbidi="on"><style><!-- /* Font Definitions */ @font-face {font-family:"Cambria Math"; 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mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi; mso-ansi-language:EN-IN;} a:link, span.MsoHyperlink {mso-style-priority:99; color:blue; mso-themecolor:hyperlink; text-decoration:underline; text-underline:single;} a:visited, span.MsoHyperlinkFollowed {mso-style-noshow:yes; mso-style-priority:99; color:purple; mso-themecolor:followedhyperlink; text-decoration:underline; text-underline:single;} .MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; font-size:11.0pt; mso-ansi-font-size:11.0pt; mso-bidi-font-size:11.0pt; font-family:Calibri; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Calibri; mso-fareast-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi; mso-ansi-language:EN-IN;} .MsoPapDefault {mso-style-type:export-only; margin-bottom:10.0pt; line-height:115%;} @page WordSection1 {size:595.3pt 841.9pt; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:35.4pt; mso-footer-margin:35.4pt; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} </style> --> <u><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Guest Post: </span></u><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"><u><span style="font-family: Garamond,serif; font-size: 12pt;">Vasujith Ram</span></u> </span><br /><br /><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Recently in </span><span lang="EN-IN"><a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=40545"><i style="mso-bidi-font-style: normal;"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Lily Thomas v Union of India</span></i></a></span><i style="mso-bidi-font-style: normal;"><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">, </span></i><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">the Court held that </span><span lang="EN-IN"><a href="http://indiankanoon.org/doc/520893/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Section 8(4)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> of the </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/793501/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Representation of People Act, 1951 (RPA)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> was <i style="mso-bidi-font-style: normal;">ultra vires</i> the Constitution<i style="mso-bidi-font-style: normal;">.</i></span> <br /><div class="MsoNormal" style="text-align: justify;"><br /></div><div class="MsoNormal" style="text-align: justify;"><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">To begin with, the Court held that, from the “affirmative terms of Articles </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/964829/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">102(1)(e)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> and </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/417629/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">191(1)(e)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> of the Constitution … the <u>Parliament has been vested with the powers to make law</u> laying down the <u>same disqualifications</u> 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 </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/513428/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">101(3)(a)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> and </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/914047/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">190(3)(a)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> 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).</span></div><div class="MsoNormal" style="text-align: justify;"><br /><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">On the basis of the above two reasons, the Court held </span><span lang="EN-IN"><a href="http://indiankanoon.org/doc/520893/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Section 8(4)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> of the RPA, which defers the date on which the disqualification of a <i style="mso-bidi-font-style: normal;">sitting</i> member will take effect, to be <i style="mso-bidi-font-style: normal;">ultra vires</i> the Constitution.</span></div><div class="MsoNormal" style="text-align: justify;"><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">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. </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/964829/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">102(1)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> and Art. </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/417629/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">191(1)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">, which state that “[a] person shall be disqualified <u>for being chosen as, and for being</u>, a member of either House of Parliament…”. This is affirmed in </span><span lang="EN-IN"><a href="http://indiankanoon.org/doc/107472/"><i style="mso-bidi-font-style: normal;"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Election Commission, India v. Saka Venkata Rao</span></i></a></span><i style="mso-bidi-font-style: normal;"><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> </span></i><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">(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.</span></div><div class="MsoNormal" style="text-align: justify;"><br /><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Now let’s move on to </span><span lang="EN-IN"><a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=40561"><i style="mso-bidi-font-style: normal;"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">CEC v Jan Chaukidar</span></i></a></span><i style="mso-bidi-font-style: normal;"><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">. </span></i><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">The judgment says that a person who is confined in a prison or in the lawful custody of police, loses the right to vote (</span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/1898428/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">S. 62(5)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> 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 (</span><span lang="EN-IN"><a href="http://indiankanoon.org/doc/712019/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">S. 16(1)(c)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> of RPA), implying that he/she is not an ‘elector’ (</span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/793501/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">S. 2(1)(e)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> 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 (</span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/162259/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">S. 4(d)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> and </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/793501/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">5(c)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> of RPA).</span></div><div class="MsoNormal" style="text-align: justify;"><br /><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">In other words, according to the judgment, if a person is in police custody, for reasons stated above, he/she does <i style="mso-bidi-font-style: normal;">not</i> 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 <i style="mso-bidi-font-style: normal;">Lily Thomas</i>], but those disqualifications are only for <i style="mso-bidi-font-style: normal;">certain</i>offences, which means, they person can be disqualified for other reasons as well). Therefore the person is disqualified from contesting elections.</span></div><div class="MsoNormal" style="text-align: justify;"><br /><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">Now, using both the <i style="mso-bidi-font-style: normal;">Lily Thomas</i> and the <i style="mso-bidi-font-style: normal;">Jan Chaukidar</i> 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 <i style="mso-bidi-font-style: normal;">one</i> law, laying down the <i style="mso-bidi-font-style: normal;">same </i>disqualifications for sitting and contesting members. Since <i style="mso-bidi-font-style: normal;">Jan Chaukidar</i> 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 <i style="mso-bidi-font-style: normal;">Lily Thomas</i> (relevant portion quoted above), all but confirms this blog’s argument.</span></div><div class="MsoNormal" style="text-align: justify;"><br /><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">One must note that provisions of Art. </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/513428/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">101(3)(a)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"> and </span><span lang="EN-IN"><a href="http://www.indiankanoon.org/doc/914047/"><span style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">190(3)(a)</span></a></span><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;">, as expounded in <i style="mso-bidi-font-style: normal;">Lily Thomas</i>, 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!</span></div><div class="MsoNormal" style="text-align: justify;"><span lang="EN-IN" style="font-family: Garamond; font-size: 12.0pt; line-height: 115%;"><span style="font-family: Garamond,serif; font-size: 12pt;">- Vasujith Ram is a second year student at NUJS</span> </span></div></div>Anonymoushttp://www.blogger.com/profile/13400171493957841909noreply@blogger.com0