Dialogue between two natural allies: Day II

The second day of this interesting workshop began with a discussion on how journalists should report the filing of First Information Reports. The Additional Solicitor General, Gopal Subramanium brought sense to the confusing nature of the subject, by suggesting that all FIRs are not to be treated similarly. If it is a case of murder, and similar offences, they should be reported without hesitation. In the second category are those cases registered by the police and the CBI, after a swoop, for instance, when they disclose unaccounted money. Such economic offences also need to be reported. In the third category are the cases which involve ventilation of private disputes and complaints, where there is need for caution and circumspection, as there can be an action for defamation if they are reported.

The propriety of reporting oral observations of the Court continued to dominate the discussions today. Considering that almost all Judges raised this issue, and some senior advocates, after prodding by Judges, also touched the issue, showed how seriously the Court considered it. But the solution suggested by the Judges that the media must ignore the observations had few takers. If the media could not ignore, at least they should understand and let the readers appreciate the context in which such observations are made, otherwise it would give a misleading picture, the Judges suggested.

Senior advocate Ashok Desai expressed his disagreement with Justice Arijit Pasayat who said yesterday that you cannot call a judgment rubbish. Justice Pasayat was referring to the contempt case in which the PUCL leader in Raipur, Rajendra Sail was convicted for contempt by the Madhya Pradesh High Court, for calling a judgment rubbish. On appeal, the Supreme Court reduced his sentence, but upheld the conviction. Sail's apology was not accepted, while the journalists who reported his statement apologised, and were forgiven.

Ashok Desai referred to two recent observations of the Judges: one by Justice Katju when he said corrupt officials must be hanged; the other by another Judge that if Ministers don't vacate Government houses, should third degree methods be used. In both these instances, the Judges were only expressing their anguish, and not advising the Government, but the media got them wrong. Saying that he prefers a Judge who articulates and offers a tentative view, rather than remain silent, he suggested that Judges should give stress to their views through their judgments.

K.Parasaran, Senior advocate, said most Judges are careful, but some moralise, which is a human tendency. The media, he said, therefore, should go by the context.

The Judges also seemed to be troubled by the growing tendency among lawyers to speak to the media, on pending cases in which they are appearing. Desai's suggestion to the media is to avoid seeking their views. K.K.Venugopal said the media should avoid articles/commentaries on cases which are likely to be considered by the Courts in the near future. B.G.Verghese questioned the relevance of such voluntary restrictions when Courts are flooded with several PILs on contemporary issues. We will then have a moratorium on discussion of public issues, till they are disposed of by courts. I believe the question of media trial is being exaggerated by the Judiciary. If Judges are human beings, would they not stand to benefit by a vibrant discusion in the media on the pros and cons of an issue before them. It is upto them to ignore them or consider them as mature persons. But to ban them just because they may get unconsciously influenced by reading them appears unreasonable.

At the end of the workshop, do the Judiciary and the media understand each other better? While they claimed to do so, to me,it appeared the objective of the Judiciary in organising the workshop remained only partly fulfilled. For one of the key objectives, namely, getting the media agree to some sort of internal regulation on following certain norms on court reporting may have to be pursued, as the media remained unconvinced, for instance, on the question of ignoring individual observations of the Judges in the Courts. On observations, I do agree that Judges have a point, but as one agrees with Tarunabh in the comments to the previous post, on how media sensationalises, and distorts even Judgments, are observations any more sacred than judgments?

One positive outcome is perhaps the decision to appoint a Press Officer for the Supreme Court who would interact with the media on a daily basis to give the official view on judgments, observations and anything concerning the Supreme Court. Clearly, the Supreme Court appears to be suffering from a serious image problem - partly because of its own making, and partly because of the media's hunger for sensationalism.

How Supreme Court wants media to cover court affairs?: A dialogue between two “natural allies”

Well, the question would aptly sum up the objectives of the workshop on reporting of court proceedings by media and administration of justice being organized by the National Legal Services Authority, Supreme Court Legal Services Commmittee, Indian Law Institute, Press Council of India, and Editors Guild of India in New Delhi today and tomorrow.

Although it is intended to be a dialogue between what one called two “natural allies” in the context of growing criminalization of politics (as if the media and judiciary are the only two hallowed institutions and that they should join hands in the face of a common adversary, called politics), the thrust of the workshop clearly appeared to provide an opportunity to the Judiciary –which initiated it – to teach the media. In this endeavour, the non-legal background of most legal journalists (including the so-called court accredited ones with law degrees) was a blessing in disguise for the Judiciary which fielded some very basic questions from the media concerning court functioning and writing of judgments with alacrity. In this post, I intend to highlight certain exchanges among the Judges, senior advocates and the media which struck me.

Justice S.H.Kapadia set the tone of the discussion, by stating that legal literacy is the only solution to correct reporting of court proceedings by media. As Judges speak only through their judgments, they have no opportunity to respond and, therefore, media needs to maintain fairness and accuracy, he said. According to him, the objectivity standard cannot apply to court reporting, because the Judiciary cannot respond to criticism in the Press.

The alternative standard of fairness and accuracy proceeds on the basis that “bias” is implicit in reporting, and seeks to minimize it. This standard, he said, must be based on concept of balance and neutrality. The editor, he said, must not ask “Do I like this story”,but rather “does this story, in my best judgment, serve the general purpose or function?”. His concluding remark, “Let us all be seekers of truth rather than finders of fault” invited a retort from H.K.Dua, editor-in-chief of Tribune that fault-finding is also truth-seeking.

To Justice G.N.Ray, Chairman Press Council of India, fair trial and freedom of press, if ever they are at conflict with each other, must be resolved in favour of the former.

It was Justice V.S.Sirpurkar who became the darling of the media, by his open invitation to them to come to his room, if they have any queries on his judgments, or observations in the court. “I will make a comment in the court room, only if I can defend myself, not otherwise”, was his cryptic remark, when journalists referred to Justice B.N.Agarwal’s angry remark in the court that the Court would not hesitate to recommend President’s rule in Tamil Nadu, if the State went ahead with its bandh on the question of Supreme Court’s interference in the Sethusamudram Project, by staying work on the Adam’s Bridge.

Justice Sirpurkar said he has no objections to even televising the court proceedings, but the issue is an administrative one, and therefore, is not in his hands. When journalists pointed out that some judgments are confusing (one journo referred to the confusion caused by the Court’s judgment on whether Jainism is part of Hinduism; he said he did not go ahead with his story because of two confusing paragraphs, and two contradictory reports in two Hindi newspapers), he advised them to contact the Judges who wrote the Judgments and seek clarity, or speak to the lawyers who argued in that case.

Reading materials circulated among the participants at the workshop had some annexures showing recent examples of “bad” reporting, and how the Court viewed them. Examples:

On the judgment on live-in relationship:

The thrust of the decision is not legitimacy of live-in relationship. It is a decision based on the age-old public policy against bastardization of children and breaking up of families. The decision is also on the basis of equality. The press could have done well had it discussed the law and wondered as to the fallout of the decision.

On Justice B.N.Agarwal’s outburst over dismissing TN Govt:

Confronted by a submission that its orders for maintaining law and order were being ignored the Judges must have reacted pointing out the possibilities for coercing the Government to comply with its orders. The Court’s remarks were highlighted out of proportion giving an impression that it was threatening to take action against the Government. It would have been nice if these remarks were not reported.

In fact, every Judge who spoke at the workshop revealed his discomfort over the media reporting utterances/observations of Judges during the Court proceedings – even if they are newsworthy, because such observations do not reveal anything, not the least of the Judges’ intentions to make such remarks, and they make such observations just to provoke the counsel, to elicit their views. It appeared to me, that the Judges seek to deprive the source of livelihood of many Journalists who cover the Courts. Why sit through the hearing of the important sensitive cases, if they are not to report what is said by the Judges?

If court reporting is just culling out the operative parts of the judgments and summing of the arguments of respective parties as carried in their written affidavits, (in any case the bulk of the media is not interested in the reasoning and the various legal nuances of the arguments), most legal journalists would lose their jobs, as the same can be done without visiting the Court. The explanation offered by some journalists that they write their reports by adding that these remarks were just observations, and not binding legal orders, did not appear to convince the Judges, who believed they are not even observations, but questions intended to elicit answers to clear their doubts, and as such, reporting the off-the-cuff remarks and giving them sensational headlines is just misreporting.

Redrawing Constituencies: The Basics, and the Implications of recent legislation

M.R. Madhavan, the Head of Research at PRS Legislative Research, has an insightful column in today’s Indian Express where he explains the history of the practice of delimitation of constituencies in India, while also providing basic facts and explanations about the policy dilemmas involved. His piece is written against the backdrop of recent legislative efforts in this respect, and Madhavan also explains details of the process that is now afoot.

He describes a significant implication of the current process as follows:

The number of seats in each state remains unchanged. An important implication is that the Hindi heartland would be under-represented in Parliament to the benefit of the southern states. That is, the 11 Hindi speaking states and Union territories would have 18 seats less than their population share, while the 6 southern states/UTs will have 12 more than theirs. The next delimitation will not be carried out before 2026. Given the continued divergence in population growth, the under-representation of Hindi states would increase to 37 seats and over-representation of the south to 26 seats by 2026. In the next election, Uttar Pradesh alone would have a deficit of 8 seats, which would widen to 16 seats by 2026.

In the remaining part of the article, he analyses the issues that arise as a result of this decision. The implications seem staggering even to those (like me) who are probably getting exposed to this area of the law for the first time. For some inexplicable reason, despite the importance of elections in India, analysis of electoral laws has not received the prominence in constitutional law that it deserves. In other constitutional democracies, this area of the law garners prominent attention among constitutional scholars. Perhaps the legal community in India would do well to go beyond focusing on the more dramatic aspects of election law (issues arising out of Article 356, the provisions of the Representation of People’s Act that gained prominence in the Hindutva cases, etc).

Discrimination by housing societies - need for legislation

The recent case of a majority-Jain housing society in Mumbai denying the only Muslim family living there power and water is not the only one of its kind. Since the Mumbai bomb-blasts in 1993, Muslims in particular, but 'meat-eaters' and 'drikers' as well, have been denied housing in the city. One wonders what the situation might be in post-Godhra Gujarat, and even rest of the country.
Surprisingly, the trend received endorsement from the Supreme Court in its decision in Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies (2005), where it allowed a housing society to rent and sell accommodation only to members of a particular religious community (in this case, Parsees) citing the freedom of association under Article 19(1)(c). The Court held that the co-operate was not 'State' under Article 12 and therefore was not bound by the duty not to discriminate on the ground of religion under Article 15. [Sushant, thanks for clarifying this point.]
Be that as it may, a national legislation prohibiting discrimination by public and private housing societies on Article 15 grounds, as well as other grounds like food preference, disability, sexual orientation, age, gender identity, HIV-status and such other grounds is imperative. Surely such legislation aimed at securing one of the primary constitutional goals of equality will be a reasonable restriction on the freedom of association.
PS - Similar arguments can be made for prohibiting discrimination on such grounds in private employment, but that is for another post.
PSS - A passing reference is in order for the latest SC judgment in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (decided on 14.03.2008). The Court agrees (para 26) that the right to eat what one wants is protected by Article 21. Yet, it upholds a Gujarat government ban on selling meat for nine days, surprisingly citing similar bans by Akbar in the past. Can protection of religious sentiments of vegetarian religious groups be a legitimate and important enough state purpose to violate fundamental rights, howsoever slightly? Isn't there also an issue of discriminating on the basis of food-preference, which is indirect discrimination on the ground of religion and caste? I am not arguing that the state can never prohibit certain types of food, but the reasons for doing so must be secular and important enough to curb fundamental rights. [The judgment is not available online yet, but I have a copy - if you want it, email me at tarunabh at gmail dot com.]
PSS - This is a news story about ghettoised housing in Gujarat post 2002. Talha, thanks for the link.

Early responses to the Sixth Pay Commission Report

Earlier this week, the Sixth Pay Commission handed in its much-awaited Report. The full report, complete with summaries and other aids, is available at the official website of the government of India here. As is to be expected, the early reactions are mixed. Today's Hindu carries an editorial on the report which is more factual than opinionated, but seems to be generally approving in its tone. In his column in Tuesday's edition of the Indian Express, Pratap Mehta was more critical of what he describes as opportunities missed by the Commission. A piece in today's Hindu suggests that the Chiefs of the three services are not entirely happy with the Report, and this angry diatribe from a serving police officer appears to reflect the unhappiness among IPS officers and others who seem displeased with the fact that the Commission has not altered the 'caste system' of the All India Services. My immediate reaction was to ponder over whether such a 'reform' was within the mandate of the Pay Commission at all. In any case, the Report provides an interesting hook for debates about restructuring and reforming government in the neo-liberal times we live in, and following debates about it will provide interesting insights into the overarching philosophies of commentators and pundits in contemporary India.

New issue of the German Law Journal on India: Vol 9 No. 3 (March 2008)

I came across this almost by accident, and found some interesting academic articles on a variety of legal issues: debates over the Uniform Civil Code, mediation in India, law books in the Hindu legal tradition, India's policy on climate change, and other topics. Many of the scholars are familiar figures, who have previously written on Indian legal issues. At least some of our readers may find the fare on offer stimulating. Here is the link to the issue: if your internet connection enables it, I would recommending clicking on the PDF links, which are more readable. (I've included the number of the issue in the heading, so that once the journal moves this to the archives, it can still be located in future by using the volume number).

Taking India’s “Look East” rhetoric seriously: The need to focus on politics in other parts of Asia

Earlier today, the people of Taiwan voted in the latest round of their nation’s Presidential elections, and a couple of hours ago, it was announced that the KMT nominee, Ma-Ying-jou, has been declared elected. (Click here for the BBC report). The Indian press barely covered what is now regarded as a crucial election in Taiwan. While the Indian media assiduously follows every small twist and turn in the US democratic primaries (we are still quite a few months away from the actual Presidential elections), it is almost embarrassing how significant political events far closer home are neglected. People in the rest of the world are talking about this being ‘the Asian century’ but the mainstream media in India seems determined to maintain its North America-cum-Eurocentric focus.

The recent elections in Malaysia are being described as epochal, but even this garnered only a few stories in the Indian press, where the main point of interest seemed to hinge on the fate of the Indian minority in Malaysia. Fortunately, there are exceptions to this general trend. One such piece appeared in the Hindu recently, and provides a decent overview of significant political developments in South east Asia in the recent past.

The UPA government does seem to take its “Look East” policy seriously, and India’s involvement with regional groupings such as ASEAN has been visibly increased in recent years. Perhaps the rest of the nation, led by the mainstream media, needs to take these shifts more seriously. In years to come, India's economic and foreign policy initiatives are far more likely to be affected by factors within Asia. In order to be able to face upto these challenges, it is essential that more attention be focused on basic issues such as the nature of democratic politics in the rest of Asia. Even highly educated Indians are completely unaware of what the acronyms KMT, BN, stand for, let alone being aware of the nuances of issues such as the exact nature of tensions between Taiwan and mainland China, or the basis of friction between different ethnic groupings and parties within countries such as Malaysia. Yet, this same group of Indians is probably following the upcoming democratic primary in Pennsylvania with a zeal unmatched by most Americans.

For an earlier generation of Indians, being 'cosmopolitan' meant being able to discuss the details of domestic politics in the UK and the US. Given the realities of the world we live in, this will no longer suffice. We need to take the Asian component of our identity more seriously. A good start would be to educate ourselves about the nature of democratic politics in Asia, using elections as a hook to know more about domestic politics in different countries.

Yogendra Yadav on Justice SL Sinha

I didn’t notice this earlier, but today’s issue of the Indian Express carries another tribute to Justice JL Sinha, authored by Yogendra Yadav of CSDS. Like that of Shanti Bhushan, which was the subject of the previous post, Yadav’s tribute has a personal touch to it (although he never met the judge). Here is what Yadav has to say on the significance of Justice Sinha’s most famous judgment:

Perhaps the real significance of Justice Sinha’s judgement was that it conveyed to an ordinary person what ‘rule of law’ meant. This was not the first time that the judiciary was passing an order to the dislike of the political masters. But the act of unseating the prime minister signaled the rise of constitutional institutions as independent actors in our democracy: the Allahabad High Court’s judgment was followed by Justice H.R. Khanna’s celebrated dissent during the Emergency and the less remembered but no less honourable role of the Election Commission during the 1977 elections. This was the precursor to the assertion of institutions like the Election Commission and the judiciary in the 1990s. The consequences of this assertion are yet to unfold fully, but it may be safe to say that the constitutional design of a political executive kept in check by a set of independent institutions was triggered by Justice Sinha’s remarkable judgement.

The most remarkable thing about the judgement was how unremarkable it was as a piece of judicial pronouncement; it was a simple verdict on technical grounds, without any rhetorical flourish. In that Justice Sinha was very much like Justice Khanna, who also passed away recently. Both of them were not known for their erudition or path-breaking interpretations. Nor were they popular for their pro-people activism. They were anything but flamboyant; not for them the highly publicised tongue-lashing at government officials that is becoming common in the courts now-a-days. After retirement they quietly faded from public life. But their honesty and courage of conviction allowed them to stand up when many legal luminaries and activist judges had surrendered.

As he nears the conclusion of the piece, Yadav draws attention to the contemporary relevance of his musings:

Tomorrow (March 23) is the anniversary of the end of Emergency, marked every year by the People’s Union for Civil Liberty in the presence of a small group of civil liberty activists. Such a group might use the departure of these two heroes of post-independence India to ask some basic questions about our judiciary: as our judges acquire more and more power, including the unprecedented power to appoint their successors, are more and more judges acquiring the courage of conviction that match their powers? Can the public trust every judge to display the same indifference to power — be it political leaders, film stars or corporate giants — that was displayed by Justices Sinha and Khanna? We need to draw upon their honesty and courage to begin to debate this question in public.

Shanti Bhushan on the passing of another courageous Judge

We've recently been discussing what makes for greatness in a judge on this blog. This post is a continuance of that theme. In a recent tribute to Justice Khanna, Justice Iyer made a passing reference to his own role in the series of events that led to the imposition of an internal Emergency in India in 1975. He did so by narrating how he had, as the vacation judge of the Supreme Court, stayed the judgment of Justice JL Sinha setting aside the election of Indira Gandhi. Today’s Indian Express carries a tribute to Justice JL Sinha who passed away recently at the age of 87, which is authored by the eminent Supreme Court lawyer, and former Law Minister, Shanti Bhushan. Here is a sampling of Shanti Bhushan’s views:

In his foreword to the book, The Case that Shook India, Justice Hidayatullah compared Justice Sinha with Judge Sirica of the Watergate case, who was responsible for President Nixon’s downfall. He also complimented Justice Sinha in that foreword saying that his own approach in the Indira Gandhi case, by and large, would have been similar.

Justice Sinha was a judge with the highest integrity, objectivity, ability and judicial rectitude. He had not only set aside the election of Mrs Gandhi on the grounds of corrupt practices but also disqualified her for six years. As his judgment was subject to an appeal to the Supreme Court, he promptly stayed his order as soon as an application was made on behalf of Mrs Gandhi.

His judgment was an act of great courage. This courage was in line with the courage shown later by Justice H R Khanna of the Supreme Court who also died recently. The courage of these two great judges was in clear contrast to the judgment of other judges of the Supreme Court in the ADM Jabalpur case in which four judges of the Supreme Court except Justice Khanna declared that during the Emergency there was no right to life of liberty and even if people were shot illegally, the courts could not intervene.

Several commentators on this blog have reiterated the lament of many scholars over the disturbing paucity of biographies and autobiographies of Indian judges. For now, these short newspaper articles will have to do, but one hopes that the genre of judicial biographies (which has a long history in the US, and is recently being pursued quite aggressively by University Presses in Canada) will be developed by historians and legal scholars in India. Given the pivotal role played by judges of the higher judiciary in constitutional politics in India, the continuing neglect of this genre will only lead to the impoverishment of scholarly analyses of both politics and law in India.

Justice Khanna & his solitary dissent

I just finished reading Justice H.R.Khanna’s autobiography, Neither Roses Nor Thorns. Everyone is aware of his solitary dissent in the ADM Jabalpur case. I was pleasantly surprised to find that he inherited this courage of conviction from his father, Sarv Dayal Khanna. As he records:

A couple of years after the Jallianwala Bagh massacre, Lord Reading was appointed the Viceroy of India. Soon after taking over his new assignment, he came to Punjab. The Punjab Government was very keen that he should be presented a welcome address by the Amritsar Municipal Committee (AMC). Pressure was put on members to support the motion carrying the welcome address to be passed unanimously by the committee. The AMC consisted of 30 members including its President, Gopal Das Bhandari. Twenty-nine Members supported the resolution to present the welcome address to the Viceroy. The Government was keen to convey the message that the massacre left no scar and the bitterness had been erased from people’s mind. But one member whom the Government could not win over despite all pressures was Sarv Dayal Khanna. He opposed the resolution tooth and nail and when it was carried out, he was the only member who did not participate in the function for the presentation of welcome address to the Viceroy.

If A.D.M.Jabalpur case is one dissent for which Justice Khanna would be ever remembered, his judgment in the Keshavananda Bharati case is perhaps one on which there has been no clarity yet. Could his judgment in the Keshavananda Bharati case be called again as a “solitary dissent”, considering that he stood somewhere between the "majority" six and the "minority" six. After reading T.R.Andhyarujina’s revealing article in The Hindu last year, I wondered whether Justice Khanna knew of this criticism during his lifetime, before his faculties failed him during the last few years. Even as he was eager to “clarify” his Keshavananda Bharati Judgment in the Indira Gandhi case subsequently (on whether fundamental rights were part of the basic structure – in the former he said they were not part, while in the latter he clarified that he did mean they were part), why did he allow the slur that he contradicted his own judgment in the Keshavananda case go entirely unchallenged?

A tribute to Justice Khanna ... and much more

Today’s Hindu carries a piece where Justice Iyer pays tribute to his colleague, Justice HR Khanna. Unlike other tributes (some of which were featured on this blog earlier), Justice Iyer mentions those actions of Justice Khanna which did not meet with his approval, making for a more balanced, less hagiographic account. By emphasizing these mistakes, Justice Iyer humanizes the memory of Justice Khanna, making him seem more fallible, and therefore, even more inspiring to ordinary mortals. This reminded me of the experience of reading Rajmohan Gandhi’s excellent biography of his grandfather – exposing the warts and all of the Mahatma made him, at least for me, a more human, immediate and real presence than the saintly depictions I was fed on while growing up.

Legal scholars and historians of the Supreme Court will find much in this piece to interest them. Justice Iyer mentions his own role in the events that led to the declaration of Emergency by Indira Gandhi, which in turn resulted in Justice Khanna’s famous dissent in the ADM Jabalpur case. While praising Justice Khanna, Justice Iyer draws a sharp contrast with what he sees as the dominant traits among contemporary judges:

We have in this country, and elsewhere, pliable ‘brethren’ with pusillanimous loyalties, hidden communalisms, class biases and noxious overbearing and jejune jurisprudence on the Bench. Their social perspectives are malleable and high-brow, their character dubious and performance sicklied by the dependencia syndrome. Some judges do not write judgments at all, or delay their delivery for years. Khanna was a paradigm of judicial promptitude and probity. … Khanna would not bend or bow before executive supremacy although opportunism did appeal to a few senior progressives on the high bench. He was free from the imbecilities of assertive ego and the arrogance of Bench bravado.

Those who read between the lines, will also get a clear picture of what Justice Iyer thought of some of his contemporaries, especially the more famous ones.

I will freely admit that of late, I have become less enthusiastic about Justice Iyer’s public writings, which adopt a shrill tone along predictable lines, reiterating a larger critique which he has drummed home for several years now. While I admire his dogged campaign for these issues, the message had started sounding stale. Here, he shows how even at his advanced age, the old fires are still burning bright. I, for one, will certainly await his next piece with enthusiasm.

ASI’s reply to my RTI application: Speaking Order & the right to non-comply with directions

My continuing Right to Information battle with the Archaeological Survey of India on why the Government suspended two officials of the ASI following the controversy over the Sethusamudram affidavit has elicited one more reply. This time, the then Appellate Authority who had earlier agreed with me and directed the Central Public Information Officer of the ASI to provide the information I requested, has been overruled by his successor, Mr.D.S.Gehlot, who appears to have recently taken over as the Appellate Authority in the ASI. Mr.Gehlot’s order dated March 14, 2008 is interesting because it says he found the order of his predecessor not a speaking order, not mentioning either the fact, or reasons and silent about how the said information would not qualify for exemption under section 8(1)(h) of the RTI Act.

The new order further says: “The Ministry of Culture has ordered an investigation in the matter and providing copy of the report submitted by DG,ASI at this stage is likely to affect the course of inquiry, which has been initiated under the CCS (CCA) Rules. Since the inquiry is still on, all the original papers related to the case are with the Ministry of Culture. The Nodal Officer of the Ministry of Culture was requested to take a decision about providing the information and take appropriate action. The CPIO Ministry of Culture concurred that the information related to the matter may be exempted under Section 8(1)(h).”

It adds: “The said exemption does not deny the information completely/forever but only till the matter is under investigation. The information sought by the applicant may be supplied as soon as the process of investigation is over.”

I agree that any order should stand the test of legality, fairness and reason. But I find the new Appellate Authority’s order difficult to comprehend. First, the RTI Act does not provide for amendment of order by one Appellate Authority by his successor Authority. Secondly, the failure of the Appellate Authority to provide a speaking order does not give freedom to the CPIO to non-comply with the AA’s order. If the CPIO is dissatisfied, then he should, one would expect, approach the CIC with a complaint or an appeal. But the Act does not contemplate that option to the CPIO. The Act is silent on this.

The Appellate Authority does not adjudicate between two disputing parties, in terms of hearing them. The AA simply goes through the RTI’s applicant’s appeal against the CPIO’s decision, and examines whether the CPIO’s decision was in conformity with the Act. In case the AA rejected my appeal without a speaking order, then how would I exercise my right of non-compliance with the AA’s Order? I have the option only appealing against the AA’s order, if I am dissatisfied. Therefore, to permit the CPIO to non-comply with the AA’s order, because it is not a speaking order, is likely to defeat the very objectives of the RTI Act, and its appeal mechanism.

Secondly, the new AA agrees with the Government that the matter is still under investigation, whereas one would assume that with the suspension order being issued against the two officials, and the Government having already submitted a revised affidavit in the Supreme Court in the Sethusamudram case, the so-called investigation must be already over. What sort of investigation is currently on? I am sorry to say the new AA’s order suffers from the same absence of “speaking order” which was cited to overrule the previous AA’s order. Once the report is submitted by the DG, ASI, it marks the completion of investigation, and the basis for the disciplinary action against the two officials. If the investigation is incomplete, then the suspension order must have clearly said, they were being suspended pending investigation. That was not the case.

Farmer Debt Waivers: The Ongoing Debate

This year’s Budget, which was presented by the Financial Minister Mr. P. Chidambaram in Parliament a couple of weeks ago, has been termed a populist and an election-year budget. One aspect of the Budget that has been subject to intense scrutiny and debate pertains to the waivers and one-time settlements offered to certain farmers who have obtained agricultural loans from scheduled commercial banks, regional rural banks and cooperative credit institutions.

Budget Terms

In his Budget speech, the Finance Minister stated (in paragraph 73):

“Debt Waiver and Debt Relief

73. Sir, while I am confident that the schemes and measures that I have listed above will give a boost to the agriculture sector, the question that still looms large is what we should do about the indebtedness of farmers. Honourable members will recall that Government had appointed a Committee under Dr. R. Radhakrishna to examine all aspects of agricultural indebtedness. The Committee has since submitted its report and it is in the public domain. The Committee had made a number of recommendations but stopped short of recommending waiver of agricultural loans. However, Government is conscious of the dimensions of the problem and is sensitive to the difficulties of the farming community, especially the small and marginal farmers. Having carefully weighed the pros and cons of debt waiver and having taken into account the resource position, I place before this House a scheme of debt waiver and debt relief for farmers:

(i) All agricultural loans disbursed by scheduled commercial banks, regional rural banks and cooperative credit institutions up to March 31, 2007 and overdue as on December 31, 2007 will be covered under the scheme.

(ii) For marginal farmers (i.e., holding upto 1 hectare) and small farmers (1-2 hectare), there will be a complete waiver of all loans that were overdue on December 31, 2007 and which remained unpaid until February 29, 2008. In respect of other farmers, there will be a one time settlement (OTS) scheme for all loans that were overdue on December 31, 2007 and which remained unpaid until February 29, 2008. Under the OTS, a rebate of 25 per cent will be given against payment of the balance of 75 per cent.

…”

The Budget estimates the total figure of the debt waiver to be in the region of Rs. 60,000 crore (Rs. 600 billion).

Some of the key features of the debt waiver are as follows: (i) they are applicable to agricultural loans disbursed by scheduled commercial banks, regional rural banks and cooperative credit institutions; (ii) marginal and small farmers get a complete waiver of the loans; (iii) other farmers are entitled to a one-time settlement under which they get a rebate of 25% of the loan outstanding, while they are required to pay the balance 75%.

Public Interest Litigation

This farmer debt waiver was challenged in the Supreme Court in a public interest litigation (PIL) within days of the Budget announcement. The petitioner, ML Sharma, alleged that the amount of debt held by small and marginal farmers was way below the Rs. 60,000-crore figure suggested by the Government. Further, the PIL sought that the waiver not be limited to farmers who have taken loans from nationalised banks, but also be extended to farmers who have obtained finances from private banks and private money lenders.

The Supreme Court, however, refused urgent hearing on the petition on the ground that the waiver was still a proposal pending before Parliament, and that the Court would not interfere on an issue that is still being discussed in Parliament. The Supreme Court’s approach seems appropriate at this stage because the petition is premature – the proposal is still being discussed in Parliament, and there is not certainty that the debt waiver will assume the nature of a binding law in the same form that it has been proposed, if at all.

However, since the matter has assumed importance, not only due to several legal and economic issues that it raises, but also because of the significant political overtones surrounding it, there is strong reason to suspect that the issue will not die down so easily that that the matter will spring up in further litigation at a later stage.

It would therefore not be out of place to discuss some of the key issues that emerge from the debt waivers proposed. The purpose of this post is only to raise the issues and highlight the arguments from different points of view, but no attempt is being made to proffer any final solutions (as that may not only be premature yet, but will necessarily involve a far more detailed exercise).

Implications

1. Size of the Problem

A key challenge to the proposal has been the alleged incongruity in the numbers disclosed by the Government. It is believed that the amount of loans borrowed by farmers from public sectors banks is far less than the numbers (i.e. Rs. 60,000 crores) arrived at by the Government. For example, the Economic Times reports today that the non-performing assets/ loans (NPAs) of all scheduled commercial banks stood at Rs. 20,100 crore, the NPAs of the cooperative sector at Rs. 32,500 crores and the NPAs of the regional rural banks at Rs. 1,000 crores. Therefore, all the NPAs of the affected set of banks totals only to Rs. 53,600 crores. Now, these figures include all loans that are non-performing in the books of the banks that arise from all types of activities, including agricultural and non-agricultural activities. Then, it seems curious at a first glance as to how the agricultural non-performing loans as proposed in the Budget stand at Rs. 60,000 crores, when the entire non-performing loans (from all sectors) of the scheduled commercial banks, cooperative banks and regional rural banks stand only at a lesser figure of Rs. 53,600 crores. This defies logic, and the anomaly in the figures requires further explanation, failing which the proposal could be susceptible to serious challenge on the ground that the proposal seeks to address an illusory problem that does not exist at all.

2. Issues of Classification

Any challenge to the proposal is likely to involve issues of classification that constitutional lawyers are entirely familiar with. Has there been any arbitrariness in determining the class of farmers that are eligible to the waiver benefit? For instance, why are only loans borrowed from scheduled commercial banks, regional rural banks and cooperative credit institutions eligible for the waiver? Why not the loans borrowed from private commercial banks or private money lenders? In fact, commentators have stated that the agriculture sector is quite substantially funded by private money lenders whose terms of lending (such as exorbitant interest rates) and harsh recovery methods cause unbearable harassment to poor farmers, sometimes even resulting in farmer suicides. Certainly, the public sector banks are likely to be softer on borrowers than private money lenders. Now, if the Budget proposal is to address the issue of farmer harassment, one issue that may arise is why the private money lenders have been left out of the waivers. The legal approach to dealing with private money lenders may be somewhat different because that would involve cancellation of the loan contracts they have entered into with borrowers, unlike in the case of public sector banks where the Government has direct authority over the activities of these banks themselves which can forego their rights under the loan contracts without involving a cancellation of the contracts. But, that may not necessarily explain the reasons for leaving the private money lenders out of the scheme.

There may potentially be challenges to the types of farmers who are eligible to benefit from the waiver. For example, there have already been calls from members of parliament such as Rahul Gandhi to increase the threshold limits of landholding that determine which farmers are entitled to the benefits.

3. Moral Hazard

This is a problem that arises in economics where one of the parties to a contract has entered into the contract without good faith or has the incentive to take unusual risks without any attendant consequences. In the context of loan transactions, this involves cases where borrowers have taken loans, made risky investments and defaulted on the loans, but have been rescued either by government intervention or other circumstances thereby excusing them from fully performing the contract, as they would have been required to had the intervention not occurred. The problem with moral hazard is that it induces risky behaviour in other borrowers who, having witnessed their peers being bailed out, generate expectations in themselves of being similarly bailed out and hence indulge in risky investments.

Applying this (implicitly) in the context of farmer debt waivers, Gurcharan Das, a well-known commentator on the Indian economy, notes that such waivers are likely to result in large scale defaults by farmers that will impose an unbearable burden on the Indian public banking system. However, others have countered this point by arguing that bail-outs and the moral hazard problem are not unique to the farming sector. It ubiquitous in the industrial sector. That is indeed a fact hardly capable of being disputed. We witness bail-outs all the time of different industrial groups or banks that have gone into the red, and usually such bail-outs have been the result of governmental intervention either directly or through the involvement of central banks. For instance, we are seeing such bail-outs unfold before us in the sub-prime crisis where several banks and economies themselves (the United States for one) have seen interventions by the central banks (such as the Federal Reserve in the case of the United States). Such industrial bail-outs are common in India too. It is probably too hard to disagree with the proponents of the farmer debt waiver measures that the moral hazard problem is universal and should not be held up as a red-flag to scuttle the waiver of farmers’ debts.

Despite all the legalities and economic aspects involved in this ongoing issue, one thing seems clear. The debt waiver is perhaps only a short term measure to extricate some farmers out of their financial misery. It does not, however, address long-term issues on how agriculture can grow through proper methods of financing the farmers. There are several other long-term measures that need to taken to improve the situation of farmers. However, as far as financing is concerned, there is a need to find ways of more sustained lending measures that properly support the farmers in their activities so as to enable them to repay their loans without imposing too high a burden and thereby keeping the non-performing loans at a low rate. It may even be necessary to replicate the success of the micro-credit financing schemes in the agricultural sector in the longer term.

Lecture on Death Penalty in Asia

There will be a lecture by David T. Johnson, Professor of Sociology and Adjunct Professor of Law, University of Hawaii, on "The Next Frontier: National Development, Political Change, and the Death Penalty in Asia" at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi at 3 p.m. on March 14th.

Over the last three decades, the number of countries in the world to abolish capital punishment has tripled, and some regions of the world, such as Europe and Latin America, are now almost death penalty free zones. In this context, Asia has become the regional capital of capital punishment, the site of more than 90% of all the judicial executions in the world. But death penalty policy and practice is changing in Asia too. This talk, based on a forthcoming book with the same title, describes and explains how capital punishment is changing in Asia and explores some possible death penalty futures in Asia generally and in India specifically.

The Meghalaya circus: Was the SC correct in refusing Mr.Sorabjee’s plea?

The Supreme Court refused to intervene in Meghalaya, where the Governor, S.S.Sidhu has decided to invite the Congress to form the Government.

Mr.Soli J.Sorabjee, the counsel for the leader of the NCP, P.A.Sangma, (petitioner is Conrad K.Sangma, his son) has argued that the Congress has only 25, whereas the combined non-Congress parties which have come together and staked claim, has the support of 31 members in the 60-member assembly. The petition challenged the appointment of Congress Leader D.D.Lapang as the Chief Minister before the trial of strength on the floor of the House.

Even as I am sympathetic to the plea that the formation which has more numbers on its side should be invited to form the Government, I am uncomfortable with some of the assumptions of the petitioner. Let me elaborate.

1. Is it the case of the petitioner that no one can be appointed as the CM before the trial of the strength on the floor of the House? Obviously, the petitioner would approve if the Governor invited the leader of the Meghalaya Progressive Alliance, the post-poll alliance which claims 31 seats to form the Government.

2. If the Governor has to consider the claims of the post-poll alliance, then obviously, he will be counting the heads at Raj Bhavan, a practice successive Commissions, including the Sarkaria Commission, opposed. The Governor cannot be faulted if he thought that the right place to determine the majority is the floor of the House.

3. If the Governor is to be satisfied with a parade of strength at Raj Bhjavan, why should he ask the CM to prove his majority on the floor of the House within a few days?

4. Mr. Sorabjee argued that the Governor presented a fait accompli by appointing the CM. Mr. Sorabjee assumes that the CM would be in a better position to indulge in horse-trading, having assumed office. Mr. Sorabjee himself was a vocal critic of the theory of horse-trading as the basis for the decisions of the Governor on whom to invite. Remember Mr. Sorabjee’s case against horse-trading, when he was critical of the then Bihar Governor Buta Singh’s recommendation to impose President’s rule in Bihar, (2005) before Nitish Kumar could stake his claim to form the Government? Therefore for Mr.Sorabjee to say now that the Congress CM would be in a better position to indulge in horse-trading given 10 days to prove his majority is hardly convincing.

(See The Rameshwar Prasad Judgment (2006 2SCC 1) Mr.Sorabjee was then the petitioner's counsel challenging the constitutionality of President's rule and dissolution of the assembly in Bihar six months after the elections, following iability of any party/parties to form the Government. The SC accepted his contention, and declared the dissolution unconstitutional. My earlier posts on this issue are here)

5. If the prospect of horse-trading on the part of the Congress CM should have some basis, then what prevents us from believing that the post-poll non-Congress alliance also came about only after some horse-trading or quid pro quo?

6. In the absence of legally laid down guidelines as to determining the claims of a post-poll alliance, the Governor cannot be faulted in following the convention of inviting the single largest party to form the Government. True, it would result in the situations like the one faced by Atal Behari Vajpayee in 1996 when his Government lasted just 13 days (At that time, the criticism was that Shankar Dayal Sharma did not wait long enough for the non-BJP parties to come together and stake their claim). But unless parties agree on some other acceptable conventions, the present state of uncertainty regarding who has a better claim to form the Government – especially where groups enjoy wafer-thin majorities-is bound to continue.

7. The Supreme Court had already been blamed for over-interference in deciding how the Jharkhand assembly should conduct its affairs when a similar vote of confidence took place after the elections. Mr.Sorabjee himself was critical of this intervention as an aberration. Therefore, the SC did well in counselling wait-and-watch approach to Mr.Sorabjee.

SC as an institution of constitutional governance - Harish Salve's lecture at Oxford

I am reporting former Solicitor General, Harish Salve's talk at Exeter College, University of Oxford on 12th March 2008. It was a fascinating intervention on the debate on the 'activism' of the Indian Supreme Court. His argument followed three broad trajectories:

1. Why the Indian Supreme Court was imagined as a unique institution that was not supposed to conform to the traditional separation of powers paradigm but rather become an institution of constitutional governance (and how it has mostly lived up to these expectations).
2. Why some of the claims regarding 'activism' of the Court are misguided.
3. Why, the two points above notwithstanding, there are reasons for legitimate worry on the question of judicial activism.

I will elaborate each of these points below.

An institution of constitutional governance:
To understand the Indian SC, Mr. Salve says, one has to understand India in its unique diversity and deep contradictions. The constitutional makers obviously shared with all constitution makers worries about the imperfections of any democratic model. However, Indian contradictions on the lines of caste, religion, class and regions meant that shifting and unstable political majorities (not merely parliamentary majorities of the governments of the day but also political majorities forged by various social groups) were inevitable. He cited the shift of the balance of power from the central to state level post nineties as one example that vindicates this suspicion. This inherent instability in our political system was sought to be balanced by envisaging a Supreme Court that played by some basic (and unchanging) rules not merely as an adjudicator of disputes between these political groups but as an instrument of governance itself. Thus, the Indian Supreme Court could not have followed the traditional model of separation of powers.

Evidence of this idea is rooted in Article 32 of the Constitution which makes the right to judicial remedies the 'heart and soul of the Constitution' (in the words of Dr. Ambedkar). The SC extended this idea in evolving the basic structure doctrine, public interest litigation, reading socio-economic rights and due process in Article 21 etc.

Not so 'activist' after all:
Whereas the above-mentioned judicial developments were unusual for constitutional courts and may be called 'activist', certain other actions of the SC are not so (contrary to popular belief). Here he takes particular issue with Prof. Rosencranz's criticisms and defends the SC's decisions in the Delhi CNG buses case and the Forests Case.

CNG buses - Mr. Salve claims that the SC did not order the Delhi buses to convert to using CNG (compressed natural gas) instead of diesel. He explained the legal reasoning of the case thus: The Environment Protection Act (EPA) empowers the government to protect the environment, which the SC held to imply a duty to protect the environment as well (after all, the Fundamental Duties chapter of the constitution imposes such duty on all citizens). Where a statutory duty is violated, a mandamus lies. The SC directed the government to set up an experts committee that the govt. was empowered (obliged?) to set up under the EPA.

The committee was set up and notified by the government. It met all stakeholders and recommended a switch to CNG. The SC told the government that under the EPA, the recommendation of the committee was binding on the government and asked the government to comply.

The bottomline is that policy was not decided by the court but by the Executive. The Court only forced the Executive to take a decision and then to implement it.

The second case Mr. Salve explained in detail was the Forests case. The Forests Policy of 1980 required central approval for diversion of any forest land for non-forest use, but did not define 'forest'. The only statutory definitions available were in colonial revenue laws which viewed forests as exploitable properties of the local ruler, and thus narrowly defined. The SC held that for the purposes of protection of forests, such definitions were inadequate and used the dictionary meaning instead. All the Court did was to insist on strict implementation of the policy by adding teeth to it. He dealt with several nuances of the case, including the composition of the Forest Advisory Committee, the cut-off date of 1980 to determine 'encroachers' etc to elucidate his point.

These cases, Mr. Salve said, illustrate that the SC has mostly been only insisting on holding the Executive to account to the legislative mandate or its own policies, while disallowing extraneous considerations to affect decisions - this is a classic judicial review function.

Worry:
Mr. Salve said that there are reasons to worry about the current state of affairs. The governmentality of the SC has evolved such that the Executive of the day is more than happy to transfer all controversial issues to the Court (cites the latest affidavit in the Sethusamudram issue as an example). This is coupled with an enormous and ever-increasing burden of public expectations from the Court and decreasing public faith in the legislature and the executive. This disprportionate burden of public expectations is reflected not in the PILs that are admitted by the SC but the hundreds of deserving PILs that are rejected because the judiciary just cannot keep up. On the chicken-and-egg question of whether judicial activism led to executive lethargy or vice versa, Mr. Salve emphatically rejected the former.

The system is strained and if unchecked, may collapse because the SC will find it increasingly difficult to live up to these expectations. The only remedy lies in the revival of the legislature and the executive branches as trusworthy organs of government that can deliver.

In response to a question, Mr. Salve said that the next logical step in constitutional adjudication in India will be to develop a hightened standard of scrutiny in fundamental rights cases (which will probably be settled by the decision in the Mandal II case where he argued for strict scrutiny).

In response to another question, he said that the Court's demand of an apology from a journalist who managed to get arrest warrants against the President of India and CJI from a local court in a sting operation was deeply troubling.

He also agreed that the current system of judicial appointments needs to change.

(I have tried to report as faithfully as possible, but if anyone present at the talk can point out any error, I will happily correct it).

The Iron Lady of Manipur: Freedom and Re-arrest: An Update

The Iron Lady of Manipur, Irom Sharmila was released from judicial custody and rearrested on the International Women’s Day. While she continues to fast, I cannot help comparing the media’s (especially the electronic media’s) live coverage of Raj Thackeray’s success in securing his bail in Mumbai, and the media's general indifference to her release and rearrest in Imphal. Her release and rearrest were covered in sections of the media. The report on rediff.com raised questions (quoting her counsel) about the applicability of S.309 IPC, as she does not have the intent to commit suicide. If S.309 can be slapped on her for the fast, Mahatma Gandhi too must have been guilty of this offence several times, but even the British did not invoke this section against him. It appears S.309 IPC is being invoked against her only to let the State to forcibly keep her alive by a drip thrust down her nose, which is obviously not the objective of this penal provision. The mystery over the fate of this living Gandhian, who has been on fast for the past seven years and the Indian state’s silence on her demand to repeal the Armed Forces Special Powers Act – despite Jeevan Reddy Commission recommending its repeal – would surely influence the course of the resistance movements elsewhere.

The latest Tehelka carries a story and an interview with her. Combat Law has profiled her in the past.

Sethusamudram Affidavit: Partial Response to my application under RTI

I have earlier posted on the non-compliance with the Appellate Authority's direction to the Central Principal Information Officer, ASI, New Delhi to furnish the required information to me under RTI with regard to the suspension of two officials by the ASI in connection with the filing of affidavit in the Supreme Court in the Sethusamudram case.

I have now received a partial response from the CPIO(HQ), ASI, New Delhi, to my questions under the RTI. I have received copies of the suspension orders of Mr.Chandrashekhar, Director (Administration) and Mr.V.Bakshi, Assistant Director, as well as a copy of the Secretary (Culture)'s letter directing the Director General, ASI that an enquiry be held in respect of these officers.

What the ASI/Culture Ministry is still reluctant to share is the copy of the enquiry report submitted by Mrs.Anshu Vaish, Director General, ASI. While I may have to complain to the Central Information Commission (it cannot be an appeal, as the Appellate Authority's direction favours me) regarding the partial/belated compliance by the CPIO with the AA's direction, I find the procedure laid down in the RTI Rules daunting to say the least. I have 90 days from the AA's decision to file the complaint, but the complaint needs to be elaborate, in the form of an affidavit, and a copy of this must be served on the CPIO, ASI. I feel discouraged in going ahead with the complaint, given the time-consuming procedural requirement. I fail to understand why the AA himself should not be empowered under the Act to impose a suitable punishment on the CPIO for non-compliance with his direction. When I sought to draw this blatant non-compliance by the CPIO to the AA, the latter replied to me to follow the remedial procedure prescribed under the Act!

That apart, the partial response is significant for what it reveals. The letter written by Badal K.Das, Secretary, Ministry of Culture, to Mrs.Anshu Vaish, DG, ASI on 13th September, 2007 reveals that before filing the affidavit in this case, the ASI had submitted a draft affidavit prepared by the ASG to the Government for approval. The Government had approved the same with appropriate changes/corrections. "Surprisingly, some of these important changes/corrections approved by the Government were not incorporated in the affidavit filed by the ASI in the Supreme Court. The Government has taken a very serious view of this matter", so goes the letter. The Secretary, therefore, requested the ASI's DG to enquire into this "lapse" immediately and submit a detailed report to the Government fixing responsibility for this lapse. A report, the letter says, should be submitted to the Government by 14th September, 2007, when the case was listed to come up for hearing in the Supreme Court.

Even as this applicant under RTI has so far been denied the privilege of reading this enquiry report, so hastily prepared by the DG, ASI, the Secretary's letter reveals that it was the ASG who prepared the draft affidavit, carrying the controversial paragraph 20 which led to a huge furore. The officials are guilty only in so far as not carrying out the corrections suggested by the Government. Did the Government seek to correct paragraph 20? It is not clear from this correspondence. It is also not clear whether the ASG was shown the corrections on his draft affidavit, as suggested by the Government, and whether the final affidavit submitted to the Supreme Court had the ASG's approval.

The suspension order against Chandra Shekhar mentions the circumstance in which the order of suspension has been made:

"Serious negligence and dereliction of duty resulting in considerable loss to the Government".

(one wonders what was the loss - was it loss of face?)

Divan tribute to Justice HR Khanna

A few days ago, Vikram contributed a post about Justice HR Khanna’s demise. Today’s Hindu carries a tribute to the judge by Anil Divan, which details the reasons why his actions are worth remembering, while also providing a personal account of the fascinating story of the ADM Jabalpur litigation before the High Courts and the Supreme Court. Towards the end, Divan explains his motivation in writing the piece:

It is essential for each generation to share with successive generations the experiences and struggles of the past for preserving a constitutional democracy and the rule of law. It is an ever-greening process and Justice Khanna’s role must encourage each one of us — judge, lawyer and citizen — to play our little part in this never-ending battle.

Justice Khanna’s actions have a contemporary relevance across several jurisdictions in this post 9/11 world. He is one of the few judges of the Indian Supreme Court who didn’t simply step aside (as did several of his illustrious peers) when the government of the day cited ‘national security’ concerns. One hopes that our contemporary judiciary will follow his example by seeking to correct the balance in the Court’s woeful record on issues relating to emergency powers, preventive detention, and national security.

Reforming the Parliament

Two interesting developments, both initiated by the Chairs of the two Houses of Parliament, are worth noting.

First concerns the an issue referred to the Committee of Privileges by the Vice-President and Rajya Sabha Chairperson Hamid Ansari. The question referred is whether members of the House who obstruct its proceedings violate the privilege of those who were entitled to ask questions but could not because of the obstruction to the proceedings. Whether the legal determination of the issue will have any practical ramifications remains to be seen.

The second issue has been raised by the Speaker of the Lok Sabha, Somnath Chatterjee. He has favoured making transparent the debates that take place in the Standing Committees of the House, a stand opposed by both the Congress and the BJP. The issue is an important one, and not entirely unrelated to the first one. Given how little legislative work actually takes place in the Houses of Parliament due to regular obstructions (the PRS website has useful tables tabulating hours spent in legislative activity), much of actual legislation (at least for the more important legislations) is delegated to various Committees. Although these committees do sometimes invite comments from the public on matters under consideration through links on the Parliament's website, their debates and proceedings are largely opaque. The argument against openness, aptly articulated in the link above by Sushma Swaraj, is that opaqueness in the Committees allows MPs to argue on principle and not toe the party line. Ideally, this should happen in the Houses of Parliament as well, but they have largely become fora for playing to the gallery. Thus, legislators end up wearing two hats, one for public consumption and other other as policy-makers. The system encourages dishonesty and hypocrisy. In general, given that legislative business has mostly shifted to Parliamentary Committees, they deserve much more academic and media attention than they get at the moment.

Given widespread political consensus on both questions raised by the Chairs of the two Houses in favour of inertia, nothing is likely to change.

Office of Profit Case in Supreme Court: ASG's submission

The Supreme Court Bench comprising the Chief Justice, Justices R.V.Raveendran, and J.M.Panchal is currently hearing the challenge to the Parliament (Prevention of Disqualification) Amendment Act, 2006 (known as the Office of Profit Act). Today was the turn of the ASG, Gopal Subramanian, who traced the history of the similar law in U.K. and the scope of similar laws in the U.S. and Canada. The Act has been challenged by the Customer Edication and Research Society and Trinamul Congress MP, Dinesh Trivedi. Last week, Harish Salve argued for the petitioners. The Act exempts 45 offices from disqualification, and protects about 55 MPs. If the Act is set aside, the Government would not have to grope for an issue to go for a mid-term election. The Government would fall on its own, as most of these 55 MPs belong to the ruling coalition and the Left parties. Therefore, the hearing of this case has assumed considerable significance.

Salve attacked the Act on two grounds: the Act was passed with retrospective effect, which is illegal and it was enacted without reference to Joint Parliamentary Committee. It is only after the Act came into force on 18.8.2006, a 15-Member JPC has been formed to consider a comprehensive definition of office of profit, as defined in the Act.

Today, the ASG was grilled by Justice Raveendran on the question whether under Article 103, for a vacancy to occur, determination of the vacancy should precede. The ASG said it should precede. Justice Raveendran, however, disagreed, and said determination would mean there is a dispute. He asked what happens if there is no dispute. Supposing, he said, if an MP declares allegiance to a foreign State on the floor of the House. The CJI asked what if he declares himself as an undischarged insolvent, and yet without resigning, continues to perform the functions of an MP. Is the Speaker then bound to refer that MP’s case to the President, who under Article 103, would in turn obtain the opinion of the E.C.?

The ASG was of the view that by mere occurrence of disqualification, the Speaker is not capable of discounting the MP’s vote. Vote can be discounted only if there is a cessation of membership, he said. He said the decision with regard to disqualification is the sine qua non. If there is no declaration/decision, there is no vacancy.

According to the ASG, Article 103 consciously gave the power to disqualify to the President. It is of great importance; the Speaker or the E.C. can do it, but the task was given to the President, he said. Once a question arises under Article 102(1)(a), then Parliament could enact a law, as there is no break in Membership of the House. In the case of Jaya Bachan, it was declared vacant. In the case of the other MPs, it was not the case and the Amendment Act came into force before they were disqualified and their seats declared vacant, and the E.C. took the new Act into consideration, while deciding other cases.

The ASG has also made written submissions to the Bench.

Reading James Laine: Allegations and Reality

Mr. Venkatesan’s post motivated me enough to read James Laine’s book on Shivaji over the weekend. While recognizing that I am no historian and my previous knowledge of the late king is pretty much limited to the high school history text, I am inclined to believe that his work is based on considerable research, remains quite modest in its scope and undoubtedly merits respect rather than the contemptuous outrage that it has unwittingly managed to elicit.
The author was well aware of the sensitivities involved and he stated as much when he laid out in the beginning what he intends to achieve (p.8):

“Whereas the explicit purpose of Shivaji’s early biographers – the chroniclers, panegyrists, and balladeers – was to celebrate his feats and victories, and the explicit purpose of twentieth-century historians was to find the historical Shivaji, the implicit purpose of all of them was to construct a coherent narrative not only of his life, but also of the cultural history of Hindu Maharashtra. This narrative of cultural identity is almost seamless, almost taken for granted, almost fully consistent with the virtues and ideals informing the accounts of how Maharashtra, and India, came to be what we are today, and how eternal principles of good and evil have contended in that deceptively coherent story. The textbook serves as a reminder to me that any narrative held within it clues to the rules of its formation, and that besides the questions of what it was Shivaji really did and did not do was the question of what he came to mean for Maharashtrians as a hero, as a Hindu, and as a nationalist freedom fighter.

…The task that I have set myself is not that of providing a more accurate account of Shivaji’s life by stripping away the legends attributed to him by worshipful myth makers or misguided ideologues, but rather to be a disturber of the tranquility with which synthetic accounts of Shivaji’s life are accepted, mindful that the recording and retaining of any memory of Shivaji is interested knowledge.”

Throughout the narrative he sticks faithfully to this limited objective. The book has a whole chapter on ‘the political readings of Hindu identity in the tales of Shivaji’. He provides numerous examples all along of how ‘the many biographies of Shivaji that were composed over the last hundred and fifty years [are] expressions of a host of different political and cultural interests, each reflecting the particular concerns of its author’ (p.64). This was partly because Shivaji fitted well into both the Hindu revivalist and the liberal/progressive ideological projects (which predate Savarkar):

“Thus the British might jail those who, like Tilak and Savarkar, saw Shivaji as their model for Hindu revival and revolution, or they might celebrate with those who, like Shahu, saw their enlightened government as a reminder of Shivaji’s progressive initiatives in religion, military technology, and government administration. But both sides contributed to a standard mythic narrative that celebrated Shivaji as both a hero and a nation builder”(p.80).

He raises some questions because “beneath the surface of the taken-for-granted narrative, one can detect, however, a few traces of concern about the coherence of the story, places where the authors played a role in buttressing their account against the cracks that might form across its gleaming surface”(p.88). He is in fact quite deferential in his approach and states unambiguously that presenting the ‘true’ picture of Shivaji is not his intention:

“…I do not mean to present a kind of debunker’s portrait of Shivaji, warts and all. I have no intention of showing that he was unchivalrous, was a religious bigot, or oppressed the peasants. I have no intention of being a latter-day Grant Duff, revealing the “real” Shivaji to be a violent marauder”(p.90). He also explains the purpose of his examination:

“What I would prefer to do is look once again at the emerging narrative that we have considered to see those places where the authors themselves have carefully avoided saying something, or where they say something rather abruptly in order to answer some unexpressed concern. Such a pursuit will allow us not to see the “real” Shivaji but to better appreciate the ideological concerns of the many authors who have shaped the narrative tradition of Shivaji’s legendary life. The real issue is what the authors are saying about themselves, about the dreams they hold, the dreams they see expressed in the tales of their hero”(p.90). Unfortunately, that is where the problem began.

Some of his comments that are considered controversial relate to how particular biographers and commentators depicted him and his conquests. The Indian Express provided statements/phrases from three of the four paragraphs that the SC has asked him to withdraw.

As can be seen, the first two of those are Laine’s judgement of how other writers viewed the significance of Shivaji’s conquests. The first objection (para 2) was to this remark (p.25): “Looking back from the coronation in 1674, the killing of Afzal Khan in 1659 was not simply an act of courage, it was premeditated violence in the service of the brahmanic world order”. If one reads his quotation from Paramanda’s Sivabharata which preceded this sentence (click here to read the relevant paragraphs), his brahmanical prejudices are plainly evident – the evil-Muslim-versus-good-caste-cow-and-brahmin-loving-Hindu theme looks very much like a 17th century version of the VHP playbook. That conclusion was simply a statement of the obvious, i.e., of what Paramanda felt, not Laine’s own sentiment about the act.

The second objection (para 5) was to the quote: “In other words, Shivaji’s secularism can only be assured if we see him as motivated less by patriotism than by simple quest of power.” Here again, in all the preceding sentences and paragraphs (click here for relevant paragraphs) he was talking of Justice M.G.Ranade’s work, the ‘enormously influential’ Rise of the Maratha Power. The sentence referred to a problem that people like Ranade who were committed to social reform and secularism faced in dealing with Shivaji:

“…Thus Ranade and Keluskar could not escape a certain cultural logic made explicit by Tilak: If Shivaji was the father of the nation, he was a Hindu nationalist, a religious nationalist, and not really a secularist. There is an irony here, for Shivaji may have been far more secular and pragmatic than he could be potrayed by Chitnis or Mahapati. The modern writer, even if he is a committed secularist reformer like Ranade, cannot strip away the religious mythification of Shivaji’s life without endangering much of what makes his life heroic, what makes his biography a patriotic narrative. In other words, Shivaji’s secularism can only be assured if we see him as motivated less by patriotism than by simple quest for power.” Again, this is primarily a judgment about how others saw Shivaji, not of what he (Laine) thought of him.

The third passage was where Laine mentioned Shivaji’s absentee father. The sentence reads (p.93): “The repressed awareness that Shivaji had an absentee father is also revealed by the fact that Maharashtrians tell jokes naughtily suggesting that his guardian Dadaji Konddev was his biological father”. Here, through that and its preceding paragraph, Laine was trying to make the point that Maharashtrians are acutely aware of how the absence of a father must have affected Shivaji. Read in context (click here for the relevant paragraphs), it is clear that this is one piece of evidence that he presents as part of his analysis of the Maharashtrian psyche and he was definitely not hinting at Jijabai’s (Shivaji’s mother) infidelity.

I do not know what the fourth paragraph is. But looking at how these three turned out, it is a mystery to me how ‘the interest of justice would be best served’ by deleting them. The SC was clearly wrong to come up with this proposal. J. Pasayat’s past record in the Clemenceau case provides little comfort for it suggests that he does not think much of the freedom of speech in any case. While I hope that the court recognizes its error, I would therefore not bet on it.

Mandates and Governance: Do they influence each other?

(Courtesy:www.indianexpress.com)

Indian Budget 2008 and the outcome of recent Pakistan elections may have little in common. But the debate that followed these two unrelated events seemed to throw interesting questions. The Indian Finance Minister, P.Chidambaram indicated towards the end of his interview to the CNBC channel that he favoured synchronizing of Lok Sabha and state assembly elections, only to immunize the budgeting and the governing process from political considerations. By now, he and his colleagues in the Government/Congress Party must be really tired of answering questions from the media whether his latest Budget is a political Budget with an eye on the likely general elections later this year.

Of all the responses that this question elicited, the one from Kapil Sibal that all Budgets are inherently political and populist appeared to make sense, as in any case, they cannot be expected to be anti-people. I was immediately reminded of the criticism of vote-bank politics being leveled against the UPA Government, when it enacted the Bill to reserve seats for OBCs in Central higher educational institutions. If Budgets hardly influenced the electorate – as many commentators have explained (Swaminathan Iyer in Economic Times represents this school of thought) – it can be equally claimed that legislative measures taken in a non-election year can hardly be described as attempts to build vote-banks.

To return to the import of Chidambaram’s remark – which was missed by the media – this is not the first time such a view has been expressed. In 2003, the then Deputy PM, Advani and the Vice-President, Shekhawat had expressed similar views. The Congress leader, and now the Union Minister, Pranab Mukherjee too favoured it. But the then Chief Election Commissioner, J.M.Lyngdoh strongly opposed it. The Hindu too was critical of it. This article explains the legal issues involved in it, in the backdrop of how the Constitutional Review Commission examined it. The report on Lyngdoh's criticism can be read here as well.

As in 2003, the present suggestion from the FM also is vague and general – devoid of any specific proposal on how to go about it, or a serious intent to carry out a reform by the Government. We don’t know, for instance, how he found his latest or earlier budget-making exercises inhibited by frequent elections in States or by the impending Lok Sabha elections. He himself has denied that the 2009 general elections – which many believe could be advanced by the Government – influenced his latest Budget. If that is so, his view favouring synchronizing Lok Sabha and assembly elections hardly carries conviction.

In the U.S., Presidential and Congressional elections take place at different times, throwing a challenge to the pundits on how to interpret different mandates, though no one has seriously suggested that these two elections must be combined, to facilitate proper governance. In India, the outcome of 2004 Lok Sabha elections was differently interpreted. Some said it was a vote against the India Shining campaign of the then NDA Government. Some denied that it was a vote against the reforms process, but a vote for reforms with a human face. Others said it was an aggregation of State-level verdicts against incompetency, inefficiency and corruption at state levels. ( A strong argument, one would say, for delinking state and Lok Sabha elections, as it confuses the real mandates. Some might even argue that even if they are delinked, electors in a Lok Sabha election in India would still vote state-wise, as they are more influenced by State issues in a normal election). It would be a fascinating study if one undertakes research into the meaning of mandates since the 1952 elections in India on which I understand there has been no serious scholarly work so far.

Coming to Pakistan, should the latest election outcome be read as a mandate against Mushraff’s continuance in office? Soli Sorabjee in his column in today’s Express, is against any such inference. Mandates – whatever the margin of victory of the victors – cannot and should not be interpreted to draw negative conclusions. In 1977, the Janata Party interpreted the mandate as a signal to launch a vindictive campaign against Indira Gandhi and in 1980, they discovered that such a campaign was hardly helpful to sustain the mandate. Therefore, whatever the omissions and commissions of Mushraff, Soli is correct in suggesting that the mandate in Pakistan could be sustained if the new rulers learn to coexist with Mushraff.

Well, what is the link between Pakistan results and the Indian Budget? The connection lies in the lesson that those who are at the helm of governance in both New Delhi and Islamabad should worry less about the past and future election results – as there could be as many interpretations of the mandate as possible – while deciding specific issues before them.

How ‘activist’ IS the Indian Supreme Court?

The issue dated Feb 23-29 of the EPW has a somewhat intriguing editorial on the Indian Supreme Court. I describe it as ‘intriguing’ because the editorial does not, as EPW editorials typically do, focus on a recent, topical issue. Indeed, many of the events and issues described in the editorial are fairly old ones.

This does not, however, mean that the analysis offered is in any way dated. Instead, the editorial takes a view of things which is quite different from regular editorials in the mainstream press, where the Supreme Court is typically portrayed as a heroic institution that regularly seeks to serve the interests of ordinary citizens by bravely taking on a recalcitrant executive and a somnolent legislature. The EPW editorial in question urges us to consider a different scenario:

[T]he Supreme Court judgments in recent years do not indicate any uniform pattern that would either justify the fears of the other two wings of the troika, or strengthen the hopes of the citizens who may be banking on the judiciary as their saviour.

This is how the editorial elaborates upon this conclusion:

Judicial activism is guided by the principle of selectivity, depending on the value judgment and class biases of individual judges. In fact, some of their verdicts reflect the convergence of the interests of the troika [i.e., the three wings of government] – on matters like reinforcement of draconian laws and prosecution of political dissenters or even innocent citizens, on the plea of fighting terrorism. The refusal of bail to the well-known social activist Binayak Sen (accused of being a Maoist) by the Supreme Court has not drawn any protest from MPs. Afzal Guru’s situation in the Parliament attack case is yet another instance of the collabo­ration of the executive, the legislature and the judiciary in nailing a suspect (since the actual perpetrators of the crime can no longer be apprehended and punished), because of guilt by association – a debatable concept that still rules the archaic judicial system in India.

Here, the editorial refers to the Supreme Court’s dismal track record on issues relating to preventive detention, emergency powers, and national security laws. This record has attracted the attention of seasoned commentators and court-watchers, and has been mentioned in previous posts on this blog here, here and here.

The EPW editorial identifies other crucial areas where the Supreme Court’s activism has been tempered by a spirit of realism and self-interested conduct:

The judges have also not extended their activism in the direction of changing the system. At times, their judgments even appear to acquiesce in the perpetuation of corruption by the legislators – the most shocking instance being the April 19, 1998 Supreme Court verdict in the Shibu Soren case that said that MPs who voted by accepting bribes enjoyed a constitutional immunity from prosecution! Quite understandably this judgment did not create any rift between the legislature and the judiciary

The editorial concludes on a sobering note:

Isolated acts of judicial activism, devoid of any sense of social responsibility and political understanding, but driven merely by individual humanitarian concerns or confrontational instincts, cannot be a substitute for the more important task of cleansing the troika – purging it of criminal legislators, corrupt administra­tors, as well as self-righteous partisan judges.

While I found the analysis offered in the editorial persuasive, some of the cases referred to here are more than a decade old, and a reference to more recent judgments would have helped make the contemporary relevance of this claim more striking. But that is perhaps a harsh quibble.

The editorial poses a challenge to contemporary legal scholars, who should take the EPW’s claim as a hypothesis that should be rigorously tested in empirically grounded research that focuses on the body of work of the Supreme Court across a range of issues where judicial activism has been known to have had an impact on public policy issues in India.

Update: The one topical issue that the EPW editorial does deal with (through a brief reference) is the case of Dr. Binayak Sen, though it is unclear whether that case was the principal motivation for the editorial. Tehelka's issue dated Feb 23 featured a cover story on Dr. Binayak Sen, titled 'The Doctor, the State, and a Sinister Case.' The author of this detailed story is quoted as saying that 'the untenable imprisonment and victimisation of Dr. Binayak Sen, a heroic humanitarian from Chhattisgarh, exposes Indian democracy as increasingly hollow.' I suspect that not everyone reading this piece will agree with the full extent of this claim. However, it is hard not to be moved by the plight of the good doctor, and to wonder about the motivations of the police and other authorities in pursuing this case in the way it has been managed so far. Hopefully, this media attention will draw focus upon the central facts of the case, which has the potential of becoming another test case of the legitimacy of our draconian anti-terror laws.