Culture, Gender and Math

Former Harvard University President Lawrence Summers stirred up a major controversy in 2005 with his remarks that ‘innate differences in sex may explain why fewer women succeed in science and math careers’ (a detailed report from the time is available in Frontline). His remarks were widely criticized both within the university and elsewhere. The Indian media reported extensively on the events at the time and also sharply criticized Summers for airing such sentiments with even an editorial in the Indian Express upon the subject (I could not find the link today). Evidence at the time however seemed to favor his views – studies had consistently shown a superiority of boys in spatial learning and girls in verbal skills.

A new paper in Science today challenges this belief. Comparing levels of gender equality in different countries (using several different but overlapping measures of gender equality) with test score differences between girls and boys, the authors find that in more gender-neutral cultures, the math gender gap disappears and the reading gender gap becomes even larger in favor of girls. This effect remains when economic growth is factored into the calculus. To eliminate the possibility of biological differences accounting for this, they also examined the results in two genetically distinct (relatively) subpopulations only to find their results ‘substantially unchanged’.

They conclude that ‘in more gender-equal societies, girls perform as well as boys in mathematics and much better than them in reading. .. The improvement in math scores is not just related to economic development, but to the improvement of the role of women in society.’

I found their analysis and results compelling. It also throws into question many of the explanations offered to account for the paucity of women in certain branches of higher education. Coupled with the findings of the recent study by Bertrand et al. which showed an increased gender disparity in admissions to engineering colleges as a result of the current reservation policy, it may be worthwhile to consider a sub-quota for women within the larger backward class quota in education.
[PS: A subscription is required to access this article. You can email me for a copy]

Evaluating Performance of Elected Representatives

Over the last year, I have been part of a group,DAKSH, which is working on developing mechanisms to bring about better accountability in politics. Thanks to Mr. Venkatesan's urging, I am making this post to get some feedback from all of you.

DAKSH believes that one of the means to establish accountability in politics is to evaluate the effectiveness of legislators by measuring the public’s perception of the legislators’ performance in addressing issues that the people consider important.

We decided to test this thought in Karnataka. We carried out two surveys- one in November-December 2007 covering all of the parliamentary constituencies and the second in April 2008 covering all of the legislative assembly constituencies. The survey sought to identify issues that determine people’s choice of legislators, and obtain their opinion on the performance of legislators in relation to such issues. By juxtaposing the two, Daksh believes, a fair assessment of a voter’s perception of the success of his chosen representative can be made.

In this post, I will set out a brief summary of our survey of the assembly constituencies. The survey was conducted across all 224 assembly constituencies in the state, and the opinion of more than 9000 respondents was obtained. A questionnaire containing a host of issues, including provision of health facilities and education, infrastructure, governance employment-generation, etc, was issued to each respondent. In respect of such issues, the respondent was asked two basic questions:

(a) Which, among them, was important to the respondent when choosing a candidate to vote for?

And

(b) What, in the respondent’s opinion, was the performance of his chosen candidate, in respect of such issues?

Each respondent was asked to rate the issues on a scale of “1” to “5” based on importance, with “1” indicating least importance and “5” indicating the most. The respondent was also asked to indicate the representative’s performance in respect of the chosen issues by grading performance on a similar scale ranging from “1” to “5”, with “5” being the grade for best performance.

Salient features of the results

1. General performance

The results from the survey reflect a stark gap between people’s expectations and their perception of representatives’ performances: the average performance index of all legislators across the state is a mere 1.84 - just about passing grade!

2. Performance on most important issues

The survey results indicate that the most important issues for people, across the state, are:
• Interest-free or Subsidised Loans
• Irrigation Programmes
• Subsidised Food Distribution
• Jobs through rural employment schemes
• Better Educational Facilities
• Better Electricity
• Better Roads
• Eradication of corruption

On the five most important issues, the average performance of the elected representatives is an abysmal 1.8. Contrary to popular propaganda, the five most important issues for people do not vary significantly between respondents in urban and rural areas. Issues that people focus on, come election time, whether in urban or rural Karnataka, are much the same, being one or more of the issues enumerated above.

3. Candidates and political parties

The survey results also show that credibility of candidates makes a great deal of difference to voters. Around 44% of respondents said that the identity of the candidate was “very important” to them and an additional 32% said that it was “important”.

Lamentably, on an average, legislators earned a marking of only 1.8 for their accessibility to people who had voted for them.

As regards the importance of political parties, around 28% of the respondents thought that the political party to which the candidate belongs was “very important”, while 45% of the respondents thought the party was only “important”.


4. Voters’ education

Another interesting result of the survey is that only around 17% of the respondents who voted for winning candidates were graduates. Contrast this to the fact nearly 50% of the respondents who voted for winning candidates are either primary school or high school educated.

5. Concerns across income groups

A further significant finding from the survey is that the issues categorised as critical by more than 70% of the respondents (with a family income of less than Rs. 50,000 per annum) and 15% of the respondents (with a family income between Rs. 50,000 to Rs. 1,00,000 per annum) as well as the remaining respondents remain virtually identical: good governance, infrastructure and livelihood.

There are a lot more details from the survey and we are still analysing the data, but the bottomline is very clear- there is large scale unhappiness with performance of the legislators, irrespective of the party. There is a gap between people's expectations and representatives' performance that needs to be bridged. DAKSH intends to carry out (if we get support, financial and otherwise) such surveys across India on a regular basis with a view to focus the political debate on people's concerns and expectations. Together with the data available from the parliament and the legislatures and details of fund utilisation by elected representatives (MPLAD, etc), such a survey will, we believe, go a long way in bringing about accountability and such accountability will, we hope, result in better governance. A more cynical way of looking is that politics is essentially a competitive arena and if there is a regular ranking of people's perception of representatives, we are likely to see an improvement in their performance.

I am sorry if this post is thin on details of the survey, but I will be happy to share more details with those of you who are interested. I will also post an update when our website is ready.

How President decides mercy petitions

In his interview to CNN-IBN, the Union Home Minister, Shivraj Patil shared an important piece of information relating to how President exercises his power under Article 72(1), to grant pardons, and to suspend, remit or commute sentences. The entire media missed this crucial aspect of the interview, even while assuming that his odd comparison of Sarabjit Singh, who awaits death sentence in Pakistan with Mohd.Afzal Guru, the Parliament attack convict, whose mercy petition is yet to be decided was the most controversial. I tried to get a link to the entire text of his interview with Rajdeep Sardesai, but I couldn't.

In his interview, Patil said once a convict submits a mercy petition to the President, the Rashtrapathi Bhavan forwards the petition to the Ministry of Home Affairs, for seeking the Cabinet's advice on the matter. The MHA then forwards the same to the concerned State Government for eliciting its views. It is only then the MHA formulates its advice and tenders it to the President, on behalf of the Council of Ministers. While Patil's concern was to dispel the propaganda of the Opposition that the Government is soft on terrorism, and that is why it has not so far rejected Afzal's mercy petition, his reference to the procedure involved in the exercise is a pointer to how such decisions are made. In a sense, it throws considerable light on the hitherto unexplored aspect of how the President decides the mercy petitions.

While the President can theoretically exercise his discretion under Article 72(1) (as the Constitution is silent on whether he was bound to consider the advice of the Union Council of Ministers), it seems a reasonable view to take that this power, like other powers of the President, is expected to be exercised on the advice of the Cabinet. In England, the sovereign invariably acts on the advice of the Home Secretary in this regard....and it is stated that on the outer side of the Home Secretary's chamber in England certain words have been inscribed which emphasise the tremendous power of life and death which so comes to be vested in the Home Secretary. In many States in the U.S., the Constitution or the law has provided for Advisory Baords to advise the Governor in the exercise of clemency. (Constitution of India, by P.M.Bakshi, 6th Edn.p.100).

Therefore, it is a sign of maturity of Indian federalism, that both the President and the MHA rely on the views of the concerned State Governments, before exercising this power. The State Governments are likely to take into account the likely impact on public order in those States, if the mercy petition is rejected or accepted. Thus if the State Governments concerned recommend inaction as a way out, should the Centre be blamed? Soli Sorabjee, for instance, has argued in this column that the exercise of this power by the President should not be contingent on its possible impact on law and order in the State, and that the former should be free from such extraneous considerations. But what if Patil says is correct (I have no reason to doubt that it is not), then it is not wrong to assume that the exercise of power under Article 72(1) by the President is much more diffused than what the Constitution probably envisages. I am inclined to consider it as a positive sign of the willingness of the Centre to accommodate the States' concerns while exercising this power.

Reflections on the litigation strategy in Naz Foundation, and comparative notes

I believe the Naz Foundation case has the potential to become one of the most significant cases in Indian constitutional jurisprudence, and I am glad that we are following its route through our legal system closely on the blog. (Thanks, Tarunabh, for monitoring the case, and for the link to the excellent Lawyers Collective site). On a separate note, I am glad that others are emulating Mr. Venkatesan’s example of providing a public record of the arguments delivered by counsel in significant cases (which is distinct from the other useful strategy of making the written arguments of counsel available to the public).

I am struck by the order of constitutional arguments adopted in the petition and in oral arguments by counsel for the Naz Foundation, Anand Grover. Lawyers seeking to repeal/read down 377 have clearly decided to bank heavily on the equality arguments (based on Articles 14 and 15), and have chosen to use the liberty claim (based on Article 21) more as a back-up argument.

While this makes sense from a normative and analytical standpoint, it is a risky strategy. India’s constitutional jurisprudence on equality is still quite conservative, especially in non-quota cases (some scholars have argued that even in quota cases, the Court’s equality jurisprudence is muddled and unclear, and not necessarily very progressive). The Supreme Court’s leading precedents on equality still adopt a very formal approach, which grants a great deal of deference to governmental choices because the “classification test” with its emphasis on “reasonableness” allows a great deal of latitude to governments. The Supreme Court of India has so far not sought to emulate the example of the apex courts in Canada and South Africa, which have rejected the similarly formal tests adopted in the US, and have embraced conceptual ideas and evolved judicial tests that seek to attain substantive equality. (There is, by now, a good deal of literature on the difference between judicial tests of substantive and formal equality, and I would encourage readers with an interest in such issues to follow up on this). By contrast, India’s Article 21 jurisprudence on liberty is substantially (and substantively) more developed. So, at least at first blush, it would make sense to pitch the constitutional case against section 377 on grounds aimed at Article 21 rather than Article 14.

In the end, I think there are good reasons for going with the strategy adopted by the lawyers for the petitioners in the Naz Foundation case. Our fabled Article 21 jurisprudence is actually quite muddled, and as a matter of constitutional doctrine, it is not clear where the definitional boundaries of ‘life’ and ‘personal liberty’ lie in India. Moreover, for those seeking to spread greater awareness of alternative sexuality lifestyles, while also removing some of the stigma attached to them, an argument based on equality is more appealing than one based on personal autonomy or liberty. This case presents a good opportunity for our judicial system to re-examine old precedents on equality, and to consider whether the time has come for our legal system to embrace notions of substantive equality in areas beyond caste (and possibly gender). In an earlier post, Tarunabh has alluded to some signs of this shift, as evidenced in the recent decision of the Supreme Court in the Anuj Garg case. The Naz Foundation case would seem to be ideally placed to test whether the Supreme Court is prepared to go further down the path suggested in Anuj Garg.

The lawyers for Naz Foundation have not, in fact, chosen one over the other, and have indeed grounded their challenge on both equality and liberty, highlighting the intertwined nature of the rights conferred by both provisions. It remains to be seen how the judiciary will respond to this nuanced strategy.

I am struck by the fact that the tensions noted above within the Indian constitutional landscape are remarkably similar to those perceived within the US. The starkness of the similarity was made clear to me when I followed a recent debate between two Yale constitutional law scholars on the appropriate constitutional strategy to adopt in gay rights cases in the US. Both agree that ultimately, the two arguments are inter-linked and should be used in tandem. However, Kenji Yoshino argues that courts should (and will) lead with the liberty argument. Heather Gerken, by contrast, argues that courts should (and will) lead with the equality argument. The second round of the debate is available here.

What is fascinating about this debate is that it is informed not just by normative considerations, but also by a deep understanding of what the U.S. Supreme Court has actually done in cases involving liberty and equality claims in recent years. Academic debates in Indian constitutional scholarship are rarely able to achieve such a heady mix of these two important factors that guide how cases are eventually decided by courts.

I hasten to add that as the debate clearly shows, there are several aspects to the American scenario that are unique to that jurisdiction, and I am not for a moment suggesting that lawyers in India should simply apply arguments from the US in India. It is not clear, for instance, that the peculiar conditions within the Roberts Court that make either liberty or equality a more promising route are at all replicated on the current Indian Supreme Court. Still, I think a consideration of the American debate may be useful for lawyers and scholars in India, if only to review their own positions.

An aside: the debate among Yoshino and Gerken was triggered by a symposium which sought to mark the many contributions of the Harvard constitutional scholar, Lawrence Tribe. In this essay, Yoshino pays a touching tribute to Tribe’s long involvement with gay rights cases, and the profound impact his constitutional scholarship has had on the current generation of US gay rights cases. Gerken’s essay paying similar tribute to Tribe is here. (These longer essays also provide greater elaboration on the themes mentioned in the respective blog posts by Yoshino and Gerken). To people who wonder whether it matters at all what constitutional arguments courts use to reach their final decisions, Yoshino’s piece will provide illumination on how a constitutional scholar’s prescient thinking can lead to a mini-revolution in rights jurisprudence.

A bolt from the blue judgment from the Supreme Court on the role of the State under liberalization

It has been the general perception that the Supreme Court has been mostly supportive of the State’s liberalization agenda since the 1990s. This judgment by Justices Sinha and Sirpurkar in the case of United India Insurance Company Limited Vs.Manubhai Dharmasinhbhai Gajera & Ors delivered on May 16 clearly suggests that even after privatization, the judiciary’s longing for Welfare State still survives. The Bench has held that ‘level playing field’ cannot apply to the institutions of the State, notwithstanding the climate of competition in which they find themselves under the State’s pursuit of New Economic Policy.

Though the case involved just an interpretation of the contract between the insured and the insurance company, the Bench’s general observations have contributed to the public law jurisprudence significantly. The Bench held that the insurance company, a `State’ under Article 12, cannot refuse to renew a policy because of a pre-existing disease, and has directed the IRDA to issue suitable guidelines in this regard.

The relevant paragraphs in the Judgment are being reproduced here:

Paragraph 23: There is no escape from the fact that the appellant is a `State' within the meaning of Article 12 of the Constitution. It has been created under the 1972 Act. The said Act, as the preamble shows, was enacted for achieving certain purposes, economic benefit of the people and/or group of people, being one of it. At the point of time when the 1972 Act was enacted the insurance companies enjoyed a monopoly status. But would it mean that only because it ceases to enjoy the same by itself is sufficient to hold that it is not required to follow the constitutional or statutory norms?

Paragraph 26:

We would assume that it is one thing to say that the State is to make all endeavours to improve the public health but the same by itself would not mean that a contract of insurance governed by statute must receive construction in terms of the said provision or otherwise, the endeavour of the State should have been to direct compulsory insurance
for all its citizens. Improvement of public health has been held to mean an obligation on the part of the State to put forth its policy to ecological balance and hygienic nvironment, the later being an indirect facet of the right to healthy life.

Paragraph 30:

“Two things are apparent. One, the Central Government has come out with a new economic policy. The monopoly status has been taken away from the General Insurance Corporation of India and its subsidiaries. The insurance companies are required to compete with others in the field, but the same may not necessarily mean that despite the statutory interdicts the public sectors insurance companies must have a level playing field with the private insurance companies.

Paragraph 31:

“ We have, despite the new economic policy of the Central, no option but to proceed on the assumption that the public sector insurance companies being a State have a different role to play. It is not to say that as a matter of policy statutory or otherwise the insurance companies are bound to regulate all contracts of insurance having the statement of Directive Principles in mind but there cannot be any doubt whatsoever that fairness or reasonableness on the part of the insurance companies
must appear in all of its dealings.

Paragraph 51:

A private player, as the law stands now, may not be bound to comply with the constitutional requirements of the equality clause, the appellants are.

Paragraphs 53 & 54:

We may also notice that the Universal Declaration of Human Rights states that :

"Everyone has right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care, and necessary social services, and the right to security in the vent of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control."

The declaration also demands that the member nations secure the
recognition and observance of the said rights. The authority would do well in issuing appropriate direction keeping in view the aforementioned human rights and particularly in view of the fact that the Government of India does not provide for any social security by way of compulsory insurance. Unlike the provisions of the Motor Vehicles Act, 1988 such compulsory insurance does not find a place in any statute book.

Report on first day of hearing in the Naz petition

The Lawyers' Collective report on the first day of hearing in the challenge to s. 377 is available on their website, which promises to provide daily updates of the hearing. Arvind Narrain criticises the continued existence of s. 377 in an article in the Indian Express today, and contrasts it with the recent election of an openly gay man to Nepal's constituent assembly.

I find the contradictory government stand most interesting - 'Counsel for the Union of India submitted that her client had filed two affidavits, one by the National Aids Control Organization (NACO) under the Ministry of Health and the other by the Ministry of Home Affairs. She admitted that NACO's reply is supportive of the Petitioner.'

Update - The matter is adjourned as part-heard till 2nd July 2008 (after the summer vacation).

Rajeev Dhavan on the M.F.Husain judgment

Rajeev Dhavan's article in Mail Today on the Delhi High Court's recent judgment in the M.F.Husain case deserves a close read. His article is useful to get an understanding of the legal reasoning behind the judgment.

Arguing for junking borrowed notions of obscenity, he explains why he considers the judgment as a landmark.

Thanks to Mr.Ravi Srinivas, for linking us to the judgment.

Narco Analysis and Democratic Rights

The PUDR has brought out its report on Narco Analysis, carrying in full Dr.Ramanatham Memorial Lecture, delivered last year in New Delhi by Dr.Amar Jesani. The report and the lecture can be accessed here.. The publication also includes a contribution by Rakesh Shukla on the legal aspects.

Can OBC/SCs selected under Merit List be counted against quota?

In the Mandal II judgment, Justice Raveendran raised an interesting issue, but left it unanswered. It was whether the OBC candidates, if selected under the merit list, should be counted against OBC reservation, or under the general category. Tomorrow, (May 19) an interesting SLP is coming up as a fresh matter before the Vacation Bench of Justice C.K.Thakker and Lokeshwar Singh Panta in the matter of Union of India v. Ramesh Ram and Ors. (SLP [c] No.13571/13572/2008). This SLP is against the Madras High Court judgment, delivered on March 20. In the case before the Madras High Court, the challenge was to the amended Rule 16(2) of Civil Service Examination Rules. The facts of the case can be gathered from the judgment, being linked here.

In the SLP before the Supreme Court, the Union of India has stated:
“If the benefit of reservation is denied to an SC/ST/OBC candidate who qualifies on merit, then there can be a situation where a lower ranked OBC candidate gets allocated to a better service than a higher ranked OBC candidate only because the higher ranked candidate performed well enough to qualify in the general/unreserved category. Such a situation is anomalous.”

The Madras High Court judgment refers to Supreme Court’s judgment in Indra Sawhney (1992) case, as having stated as follows:

“In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates”.

In its judgment, the Madras High Court noted that the whole contention of the Government of India in support of the impugned Rule 16(2) is that it better serves the purpose of reservation for reserved category candidates to get a service of higher choice in the order of their preference, ignoring the basic principle upheld by Supreme Court and even admitted by the Government of India in para No. 4 of their affidavit, that the normal policy of the reservation stipulates that the reserved category candidates, do have right to compete for unreserved seats.

The Court said: “In the case on hand, admittedly, 31 OBC and 1 SC candidate have got selected on their own merit and they have not availed any relaxed standards, so as to bring them within the folder of 'reserved category'. Except for the fact that they hail from SC and OBC categories, they cannot be branded as 'reserved category' since their selection was on their own merit. If they are to be treated as 'reserved category' for any purpose, much less as mandated by the impugned Rule 16(2), it will put a stumbling block to the other 'reserved category', since their selection is definitely affected.

“ To explain, even though these 31 OBC and 1 SC candidate were selected on their own merit, instead of accommodating them within the 210 unreserved candidates, if they are accommodated in the 117 OBC and 66 SC candidates, definitely, the same number of candidates who could get selection under the relaxed standards, are being denied the postings, as in the case on hand. It is to be held that there cannot be any dispute with the proposition that if a candidate is entitled to be selected on the basis of his own merit, then, such selection should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4) of the Constitution.

“It is clear that though it is stated that the impugned Rule 16(2) was introduced with a laudable object of subserving the purpose of the SC/ST/OBC candidates included in the unreserved merit list, practically it is working detrimental to the interest of the SC/ST/OBC candidates, who are claiming appointments as per the notification dated 4.12.2004 issued by the UPSC under the reserved categories. Therefore, the said impugned Rule 16(2) is unreasonable and against the settled principles of law and the Rule of reservation enshrined under Article 16(4) of the Constitution and also depriving adequate representation of the SC/ST/OBC candidates in the 21 services notified in the Notification dated 4.12.2004, as contemplated under Article 335 of the Constitution. Therefore, the said Rule is liable to be struck down and accordingly it is struck down as violative of Articles 14, 16(4) and 335 of the Constitution."

It will be interesting to watch what view the Supreme Court takes on the matter.

Update: The Supreme Court stayed the High Court judgment, and posted the matter for further hearing after the vacation.

Same Sex Marriages: California Supreme Court's decision and our own S.377

The California Supreme Court's decision legalising same sex marriages has been hailed as a landmark decision. The purpose of referring to this decision is to post a curtain-raiser to an important hearing on May 19 in Delhi High Court in Court No.7 before Justices A.K.Sikri and J.R.Midha. The hearing is over the case of Naz Foundation v. Government of NCT of Delhi & Ors. concerning the constitutionality of S.377 of Indian Penal Code. There have been two posts (here and here}on Balkinisation on the California decision. This report by Siddharth Narrain gives an update of Naz case upto 2005.

Judgment in Shoukat Hussain Guru case: the unanswered questions

The Supreme Court in its judgment delivered today in the case of Shoukat Hussain Guru appears to have admitted its helplessness in correcting a flaw in its judgment, after the dismissal of review and curative petitions.

While dismissing the appellant’s writ petition, seeking his immediate release from imprisonment, and retrial under Section 123 IPC (as he was convicted and sentenced, without being charged under this section, thus depriving his opportunity to defend himself), the Court said as follows: “Moreover, for granting the relief prayed for by the petitioner for entertaining the present writ petition it is necessary to set aside the judgment delivered by a Division Bench of this Court confirmed by dismissal of the review petition as also of the curative petition, which cannot be granted as not being permissible in exercise of the powers under Article 32 of the Constitution of India.” Clearly, the issue involves a substantial question of law and the Constitution, and should have been heard and decided by a larger Bench, rather than by the present two-Judge Bench.

According to the Bench, it cannot be said that because a specific charge under Section 123, IPC was not framed, he had lost an opportunity of raising the defence available to him and thus has been directly and prejudicially affected. This defence was available to the petitioner even under Sections 121, 121A and 122 of which he had been expressly charged with, it said.

During the arguments, Justice Sirpurkar repeatedly asked the ASG that since the petitioner had been acquitted of the charges under Sections 121, 121A and 122, would it be correct to suggest that he did not use the defence to show that he had indeed informed the police, or that he had a reasonable excuse not to inform. But the judgment is silent on this aspect. It can be easily said that the petitioner had no need to use this defence when without using it the Court had acquitted him. Had he known that he would be convicted of a minor offence under Section 123, probably he would have used the defence. The silence of the judgment on this aspect, is therefore, intriguing.

The prosecution having been successful in proving the necessary ingredients of Section 123, IPC, it would constitute a minor offence of a major offence and, therefore, the petitioner was convicted under Section 123, IPC which is a minor offence of the offences he faced during the trial. In the face of the stand he had taken and his conduct even after the attack, he could not have pleaded reasonable excuse for not passing on the information, the Bench held. The judgment cites the Multtani case to hold that Section 123 is a minor offence. But in this case, the Supreme Court had in fact set aside the conviction by the High Court, because the High Court had erroneously inferred a minor offence.

The facts of the case are not in dispute. The Bench assumes that even if the petitioner got an opportunity to defend himself against the charge under Section 123, he could not have succeeded, because it says, there was reasonably high probability that he could not have succeeded. Since when, we began to base convictions on mere probabilities (even if it is high), rather than on grounds beyond reasonable doubt? As the petitioners' counsel said during the arguments, even if he had informed about the incident, the police might not have taken him seriously, or that he could have been facing threat to his life if he did not conceal, which could have been considered as a reasonable ground for concealment. The judgment does not address these arguments.


My previous posts are here and here. Today's judgment can be read here.

As the judgment comes close on the heels of the Jaipur blasts, the Court would have doubtless revealed its zero tolerance for all terrorist acts, including concealment of information about commission of a terrorist offence. But the question can still be asked, does the judgment answer all the questions raised by the petitioner during the arguments?

The beginnings of Mandal III case?

Well, that is how I shall describe today’s proceedings of Pan-IIM Alumni Association v. Union of India (W.P.[c] 3449/2008] before the Delhi High Court Bench comprising Justices T.S.Thakur and Siddharth Mridul. Today, the petitioners’ counsel, Harish Salve succeeded in persuading the Bench to issue notice to the Union of India on the matter.

The crux of Salve’s submission was that the Supreme Court’s April 10 judgment in Ashoka Kumar Thakur case laid down certain tests/parameters by which OBCs have to be determined. He said: “The judgment said, caste can be a starting point, but you have to arrive at the OBC”.

Justice Thakur asked whether determination of BCs must be post-Act. Answering it in affirmative, Salve said, interpreting Justice Pasayat, that if a caste assimilated a large number of graduates, that caste has to go out of the list. Asking who has to do that exercise, he said the Judges also wanted poverty to be factored in. The nature of examination of the list cannot be Kerala model, he said, referring to the manner Kerala assembly passed an Act saying there was no creamy layer among the BCs in the State, which was later struck down by the Supreme Court.

Justice Thakur then asked Salve, what according to him, should have been done after the April 10 Judgment of the Supreme Court. Salve then said, the majority judgment said upto 27 per cent quota can be given to the OBCs. Pointing to Paragraph 91 of Pasayat’s judgment, Salve said if the OBC population is less than 40 per cent, then obviously, the quota should be less than 27 per cent.

Justice Thakur then asked if that had been the import of the judgment, then the Bench would have struck down the impugned Act. Salve then said, it is a complex judgment, law develops step by step, and the ratio has to be found.

The Solicitor General, G.E.Vahanvati stood up to say there is a summary which has been signed by all the five Judges. Salve said it is of no value. He reminded the Bench about the Keshavanand Bharati judgment, and the summary , purportedly signed by a few Judges. It does not become the law, he said.

Salve then said, certain absurdities would follow, if 27 per cent quota is accepted. After exclusion of the creamy layer, if the OBCs constituted 14 per cent of the population, then obviously you can’t have 27 per cent quota for the OBCs.

He said Justices Pasayat, Thakker and Bhandari were clear that 10+2 is not enough , and graduation must be the cut-off. The CJ is silent. Bhandari goes a step further and even elaborates who should be counted out at the creamy layer stage and names Ministers, MLAs, MPs etc. There ought to be a twin test and educationally forward also must be removed to form a homogeneous backward class, Salve said. He said law has to be understood as understood by the Court subject to such safeguards as laid down.

Referring to Paragraph 172 of Pasayat judgment, Salve said he referred to the power to exclude institutions from the ambit of the Act, and said this power is coupled with duty. According to Paragraph 122, there can be no reservation in super speciality courses. If the Government declines to comply, he said, it will be open to judicial review.

Pointing to the Memorandum issued by the Government on April 20, following the judgment, he said it says the OBCs should not include socially advanced persons. It clearly means educationally advanced persons can be included, which is against the ratio of the April 10 judgment, Salve maintained.

He alleged that the Government did not consider whether the Office Memorandum of 1993, fixing the criteria and determination of OBCs, and as amended in 2004, require any revision in the light of the April 10 judgment. If nothing is required, they misread the judgment, he said. You have to figure out where the balance lies, he told the Bench, when Justice Thakur asked whether what Justice Pasayat said are just observations.

Justice Thakur then asked whether the Constitution Bench had framed any common questions, to which both Salve and Vahanvati said there were so many questions. Every Judge formulated his own questions, said the SG. Justice Thakur then said it would have been easy (to find ratio), if the questions could be grouped in terms of certain issues.

Harish Salve then said Article 15(5), to the extent it applies to Government institutions, is superfluous, as Article 15(4) already covers it. The Bench upheld 15(5) for Government educational institutions but left the question of private institutions open. He said if you say 15(5) covers Government institutions, it does not lift the bar of Article 29(2). As the Supreme Court did not answer the question of Article 29(2) bar on Article 15(5), this issue is still open, and the High Court can strike it down, he argued.

Justice Thakur then asked whether the petitioner is an affected party, to which Salve said no.

The Solicitor General said all the petitioners’ grounds were argued in the Mandal II case. He said the Supreme Court had expressly upheld the 1993 Office Memorandum excluding the creamy layer. The BC list has been operating for so many years, he said, (Salve intervened to say that is the problem), and added it has stood the test of time. The SG then argued that Justice Bhandari was laying down an individual test, which can never apply to a class. Reservation is class-based. If individual graduates become ineligible for quota, the Act must have been struck down.

The SG drew the Bench’s attention to S.4(d) of the Central Educational Institutions (Reservation in Admission) Act, 2006, which has been upheld by the Constitution Bench. This section says reservations shall not apply to a course or programme at high levels of specialization, including at the post-doctoral level, within any branch of study or faculty, which the Central Government, may, in consultation with the appropriate authority, specify. He meant that if the CB believed it should not apply in all PG institutions, then it would have struck down at least this section, or if it not severable, then the entire Act.

He also drew attention to S.2[j] of the Act which clearly said teaching or instruction in any branch of study means teaching or instruction leading to three principal levels of qualifications at bachelor, (undergraduate), masters (postgraduate) and doctoral levels in agriculture and allied sciences, etc. as may be notified by the Central Government.

Salve then hastened to say he wants to amend his petition to say that if you are a graduate, you are a creamy layer. “We had enough trouble trying to interpret this judgment”, he said. “According to us, the SC read down the law”, he said. He promised to elaborate more through further averments on May 20. The case has been adjourned to July 10, 2 p.m.

Should the Bench have admitted the matter, after the SG drew its attention to S.2[j] and 4[d] of the Act? Was the petitioner correct in seeking to reopen the case in the High Court, rather than seek a review of the judgment in the Supreme Court? Can the High Court sit in judgment over the recent judgment of the SC Constitution Bench, even if there are apparently some grey areas? Well, I suppose the answers will be debatable.

Update:; Supreme Court on May 16 vacated the stay imposed by Cal.High Court on the implementation of the Act, and transferred to itself the above case in Delhi High Court, and the similar cases in Cal. and Bombay High Courts by issuing notice to the petitioners in those cases on the UOI's transfer application. The report on the proceedings is here.

A significant contribution to law of torts

It has been the general perception that the law of torts is not as well developed in India as in the West. While there is some basis to this perception, there has been some very good judgments by the Supreme Court, especially since the mid-1980s, to reverse this. The judgment, delivered by Justices Sema and M.Katju, in the case of Union of India v. Prabhakaran Vijaya Kumar on May 5, is truly a landmark as it is for the first time the Railways have been asked to compensate the relatives of a victim who died by accidentally falling off from a moving train, while trying to board it.

The Judges said:

"It will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one. Hence in our opinion the latter of the abovementioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred".

More significant is paragraph 40 of the Judgment which extends the principle of strict liability to public bodies. The Judges said:

" The decision in M.C. Mehta's case (supra) related to a concern working for private profit. However, in our opinion the same principle will also apply to statutory authorities (like the railways), public corporations or local bodies which may be social utility undertakings not working for private profit."

In paragraph 41, they continued:

"It is true that attempts to apply the principle of Rylands vs. Fletcher
(supra) against public bodies have not on the whole succeeded vide Administrative Law by P.P. Craig, 2nd Edn. p. 446, mainly because of the idea that a body which acts not for its own profit but for the benefit of the community should not be liable. However, in our opinion, this idea is based on a misconception. Strict liability has no element of moral censure. It is because such public bodies benefit the community that it is unfair to leave the result of a non-negligent accident to lie fortuitously on a particular individual rather than to spread it among the community generally."

UPDATE: In today's Indian express, Soli Sorabjee in his column, refers to this judgment as a fine example of judicial activism. But I am inclined to consider it more as a contribution to law of torts.

Sethusamudram & M.F.Husain cases: A study in contrast

On May 8, the Supreme Court, before adjourning the hearing of the Sethusamudram case to July 22, asked the Centre to consider an alternative alignment for the proposed canal, without damaging the Ramar Setu, and to consider whether an archaeological study could be conducted to declare Ramar Setu a national monument.

The Court did so, before hearing the counsel for the respondent, the Union of India, Fali S.Nariman whose turn was yet to come. The court did so on the technical plea that the Madras High Court's direction to the UOI to conduct an archaeological study had not been complied with. The plea was that the direction had not been stayed, even though the connected cases had been transferred to the Supreme Court. The UOI must have asked for the stay of the High Court's direction, as it was also the subject matter of the SLP before the Supreme Court.

The Supreme Court must have heard the UOI to know whether it considered alternative alignments, before choosing the one touching the Ramar setu, and whether it also considered the demand seeking the status of national monument for Ramar Setu. The Court simply assumed that the UOI did not consider alternative alignments (based on the arguments of petitioners), and that it did not even consider conducting an archeological study on Ramar Setu. Surely, the UOI has strong reasons to offer on both. Did the Court allow itself to be swayed by emotional considerations, before even hearing the UOI?

MESSAGE: If there has to be a choice between respect for people's so-called beliefs and development compulsions, choose the former.

On the same day, the Delhi High Court Justice Sanjay Kishan Kaul quashed three of the six cases pending against 90-year old painter M.F.Husain, for allegedly hurting public sentiments through his paintings of Hindu Goddesses, which were termed obscene. The Judge said in his judgment: "Our culture breeds tolerance both in thought and action. I have penned down this judgment with the hope that it is a prologue to broader thinking." He said there are many artists who embrace nudity as a part of contemporary art.

Message: If there ought to be a choice between respect for one's so-called beliefs and sentiments and freedom of artists, choose the latter.

Rarely, Judges assert their independence without being influenced by the prospect of public outrage. That is why the judgment of Justice Sanjay Kishan Kaul deserves to be celebrated.. The online link to this judgment can be found on this blog in a couple of days.

Article Alert: Rajeev Dhavan discusses the concept of obscenity in this Mail Today article in the context of Justice Kaul's judgment.

Venugopal v. Union of India

The judgment in P. Venugopal v. Union of India delivered on Thursday is obviously interesting because it causes political embarrassment to the government by striking down an ill-advised piece of legislation. But it is also an interesting decision because it displays judicial craft in carefully avoiding ascribing motives to the Parliament (given the facts of the case, it was hard not to do so) while striking down the legislative provision. The Court carefully characterised it as a classification issue under Article 14, instead of giving in to the temptation of using arbitrariness standards which are generally reserved for Executive action. (Admittedly, I have not read the case very carefully, so please point out of you think I am praising the Court needlessly.)

Only the proviso of the following section of the AIIMS (Amendment) Act 2007 was under challenge:

(11A) - The Director shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of sixty-five years, whichever is earlier.

Provided that any person holding office as a Director immediately before the commencement of the All India Institute of Medical Sciences and the Post-Graduate Institute of Medical Education and Research (Amendment) Act, 2007, shall in so far as his appointment is inconsistent with the provisions of this sub-section, cease to hold office on such commencement as such Director and shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of his office or of any contract of service......

The Court clarified that 'the impugned proviso does not lay down any policy or principle at all, but deals only with the case of the writ petitioner and seeks to affect him in isolation.' The point was that the provision did not only affect a single individual at the present, but that even in the future no one else would ever be affected by it. The provision was fixed in time aimed at just one individual. The Court found an unacceptable classification between the current and future Directors of AIIMS.

To quote the operative part of the judgment - ' the principle of law stipulated by this Court that curtailment of the term of five years can only be made for justifiable reasons and compliance with principles of natural justice for premature termination of the term of a Director of AIIMS - squarely applied also to the case of the writ petitioner as well and will also apply to any future Director of AIIMS. Thus there was never any permissibility for any artificial and impermissible classification between the writ petitioner on the one hand and any future Director of AIIMS on the other when it relates to the premature termination of the term of office of the Director. Such an impermissible over classification through a one man legislation clearly falls foul of Article 14 of the Constitution being an apparent case of "naked discrimination" in our democratic civilized society governed by Rule of Law and renders the impugned proviso as void, ab initio and unconstitutional.'

Women's Reservation Bill:Behind the resistance from OBC MPs

The Women's reservation Bill has once again made it to Parliament, this time, through Rajya Sabha, so that it does not lapse, with the dissolution of Lok Sabha, as happened three times earlier. But have the protagonists of the Bill learnt any lesson?

The Bill was introduced in Lok Sabha three times previously - in 1996, 1998 and 1999. In 1996, it was on the verge of being passed without discussion, on September 12, 1996. The women members resisted the attempts to refer the Bill to a Select Committee. The Government led by Deve Gowda was ready to accept any course to be recommended by the House - adoption without discussion, or a special session, or reference to a Select Committee. The Speaker, Purno Sangma was ready to dispense with the rules, and the Question Hour was suspended.

There was a complaint that the Bill was silent on reservation in Rajya Sabha and Legislative Councils. The member who expressed the concern was assured that his view would be taken care of after the passage of the Bill. This Bill's Statement of Objects and Reasons claimed that it was only seeking to extend the similar reservation for women already granted in Panchayats and Municipalities. The SOR also claimed the major political parties are in favour of making such reservation for women. The then Prime Minister, H.D.Deve Gowda, who introduced the Bill (rather than the then Law Minister) was ready to pass the Bill, if all the members of the House wanted.

But within a few hours, the Prime Minister and the Speaker changed their stands. The PM saw force in the criticism of some MPs (like Uma Bharati)that there ought to be reservation for OBCs within the women's reservation. The Speaker said he was helpless, because so many other parties wanted to speak on the Bill, and the women MPs felt the more the debate, the less chances of its immediate passage. September 13 1996 was the last day of the session. An all-party meeting convened by the Prime Minister had decided that the Bill be passed, and another Constitution Amendment Bill brought for the reservations for BCs, as stated by Vajpayee on the floor of the House.

But the PM apparently went against the consensus of that all-Party meeting, and found it expedient to consider the concerns expressed by individual MPs, some of whom like George Fernandes, questioned the haste with which the Bill was sought to be passed, when the Bill clearly said, it was applicable only to the next Lok Sabha elections, which was then due only in 2001 (there was no talk of mid term poll in 1998 then), although had it been passed, it would have been applicable in the subsequent state assembly elections.

The Speaker's ruling finally clinched the issue. He said the matter deserved a deeper and more elaborate debate, and he postponed the consideration of the Bill, till after the submission of the report by the Joint Parliamentary committee, to be constituted for the purpose. The JPC did submit its report in time - on the last day of the first week of winter session of 1996. But, in the mean time, politics appeared to have overtaken the legislative business. The JPC's report too recommended that the Government might consider the issue of extending reservations to OBCs also at the appropriate time.

The protagonists of the Bill did not appear to be against the demand for reserving seats for OBC women. But they were impatient that the Bill's passage was sought to be delayed on that ground.

The critics, on the other hand, did not want to postpone the question of reservation of seats for OBC women till after the passage of the Bill. The Bills introduced in 1998 and 1999 were identical to the draft Bill, which was reported by the JPC in 1996. On both the occasions, the Bill was stalled by its critics, and lapsed with the dissolution of the House. Among those who testified to the JPC in 1996 was Ashok H.Desai, then Attorney General of India. But the evidence submitted to the JPC was not part of the annexures of the JPC's report, and as a result, it remains confidential.

If the OBC MPs' resistance to the Bill is understandable, the Bill's protagonists' resistance to any change in the Bill's present form is not very convincing. Nitish Kumar, (presently Bihar CM) in his dissent to the 1996 JPC Report said women literacy is less in comparison to men, but at the same time the literacy among OBC and SC and ST women is far less than that of other categories of women, thus justifying the need for special and preferential treatment for the OBC women. It is a moot point whether the OBC MPs' fears of poor OBC representation in Parliament, after the enactment of the Bill in the current form, have any basis, but the women MPs appear to be doubting the motives of those who demand OBC quota within the women's quota.

EC's obsession with free and fair elections: An alternative perspective

It was refreshing to read an article in Business Line on the other side of EC's obsession with ensuring free and fair elections, in the context of the assembly elections in Karnataka.

The author says: "Newspaper reports suggest that the officials of the Commission have seized saris and utensils meant for distribution to the voters by some of the candidates. That is considered as ‘bribing to get votes’. But if the same candidate or his political party promised to provide every individual with free saris or TVs or power, that is seen as an electoral manifesto." He goes on: " Inflation shifts incomes from poorer segments to richer ones, whereas elections shift income from richer sections to poorer ones".

He concludes: "Let us not try to impose artificial European-type elections with a funereal atmosphere on the noisy but joyful and colourful Indian public. Our elections ought to be like a kumbha mela with all its pomp and revelry and free food, and not like a dark-suited solemn procession behind a carved casket."

The EC's unreasonable restrictions on the campaign have invited critical comments from political parties. The author has raised a pertinent point that the poll-eve promises of political parties could equally be considered a corrupt practice. While there is no case law on the subject, a PIL filed by one S.Subramanian Balaji challenging the Pattali Makkal Katchi's electoral promise as a corrupt practice is now pending in the Supreme Court, and was heard on April 8.

An Equal Opportunity Commission?

The Madhav Menon Committee Report on the establishment of an Equal Opportunity Commission submitted recently to the government recommends outlawing discrimination against 'deprived groups' in the public as well as private sector. The 'deprived groups' must be defined on 'grounds beyond their control' and must satisfy an objective (and evolving) deprivation index to be protected from discrimination.

Any doubts about the existence of discrimination in the private sector can be set to rest after reading the empirical findings of this paper by Sukhdeo Thorat, not to mention various other newspaper clippings of individual cases of discrimination, especially in schools and housing societies.

I have reviewed the Bill here and think it is a good first step to deal with discrimination in the private sector. Some of the features of the Bill are summarised:
1. It does not deal with reservations - its only purpose is to outlaw discrimination in public and private sector.
2. There is an open ended, but objectively-determined, list of protected groups, reviewable by the proposed Commission rather than the politicians. Presumbaly, this list will be subject to judicial review.
3. It addresses both direct and indirect discrimination. Indirect discrimination occurs when a facially neutral provision has a disproportionate impact on a deprived group - there is no requirement to prove a discriminatory motive for this.
4. The initial focus will be employment and education sector, although there are strong reasons to include the housing sector as a priority sector as well.
5. The enforcement mechanism is weak. There is no attempt to deal with every individual case of discrimination. The Commission is empowered to take up example-setting cases, but its main task is to direct policy and advocacy.

JUDGMENT ALERT

Tomorrow, Justice Arijit Pasayat will deliver the judgment in the case of Maninderjit Singh Bitta v. UOI, on behalf of a three-Judge Bench. Bitta, who runs a movement against terrorism, has sought early implementation of the scheme of high security registration plates (HSR) for motor vehicles, to prevent car thefts and terrorism. The scheme has been getting postponed, after missing one deadline after another, mainly because of lack of readiness on the part of state Governments. For those of us, who have been tracking the success rate of PILs, the judgment is likely to be an interesting one. The judgment is here.

Sethusamudram case: K.Parasaran’s submissions

Parasaran began with the Preamble to the Constitution, which proclaimed its resolve to secure to all its citizens, liberty of belief, faith and worship, among other things. He said Ram Sethu is considered by large sections of believers as holy and sacred place. To interfere or destroy even part of the said causeway would be an interference with the right of liberty of belief, faith and worship. Splitting the word Ramayana as Ram and ayana, he said the latter denotes the path, which the former took, and it is not just a story. In Hinduism, he said feet is considered holy. That is why he suggested Ram Sethu is not just any other Hill or river, which may equally be considered holy. He asked, “Is there a compelling necessity to cause this wound to the belief of the people?”

In pluralist secular country, in situations of conflict between different facets of public interest, an attempt should be made to so mould the situation and interpret law to bring about concordance and not discordance, he said. According to him, the present case involves two aspects of public interest, claim of right to religious belief, faith and worship on the one hand, and the claim of economic and commercial development in the matter of providing convenient passage for ships. Every attempt should be made to accommodate both the aspects of public interest which would be in conformity with the principles of concordance in pluralist society. If both cannot be accommodated the Court must weigh one competing aspect of public interest against the other, and decide where the balance lies. In doing so, it will ensure that the constitutionally protected fundamental rights are not violated. The Court will have to take into account the nature of the injury to the public interest in deciding the conflict, he submitted.

In a lighter vein, Justice Raveendran asked how was it that Parasaran argued against the Government, when in every other case, including the OBC quota, he argued for the Government. Another petitioner in this case, Subramanian Swamy got up and said it was Lord Rama who got him this side.

Sethusamudram case in the Supreme Court: Soli Sorabjee's submission

The Sethusamudram case (Rama Gopalan v. Union of India) came up for regular hearing before the Bench comprising the Chief Justice, Justices Raveendran and J.M.Panchal.
Today Soli J.Sorabjee and K.Parasaran (on behalf of petitioners) made their submissions.

Soli Sorabjee said a religious belief, which is genuinely and conscientiously held over a long period of time by a substantial number of adherents or followers of a particular religion becomes an integral part of that religion and is entitled to protection under Article 25 of the Constitution. This, of course, is subject to the requirement that the practice and profession of the belief is not contrary to public order, morality or health. He said it was noteworthy that no restriction can be placed on freedom of religion on the ground that the restriction is “in the interest of general public” as in the case of Articles 19(5) and 19 (6).

He said it cannot be seriously questioned that it is the genuine and conscientious religious belief of the Hindus that Ram Sethu was constructed by Lord Ram and his followers. The issue before the Court is not whether this belief can be historically and scientifically established. The Court cannot sit in judgment over that belief. The Court’s role is to determine whether the aforesaid belief is genuinely or conscientiously held over a period of time by Hindus and if that be so it falls within the ambit of the freedom of religion guaranteed by Article 25. The right to worship and make offerings and perform rites at Ram Sethu is in pursuance of the integral belief of the adherents of Hindu religion; therefore, any State action which results in impairment or even partial destruction of Ram Sethu and leads to extinction or diminution of the right to worship at Ram Sethu as at present is per se violative of the guarantee of freedom of religion, Sorabjee said.

He pointed out that the expression “any object held sacred by any class of persons” in Section 295 of IPC has been construed by the Supreme Court to include any object however trivial or destitute of any real value in itself, if it is regarded as sacred by any class of persons, to be covered by this section. Citing S.Veerabadran Chettiar v. E.V.Ramaswami Naicker (1959 SCR 1211 at 1217 and 1218), he said the Court had emphasized that it is immaterial whether Courts share those beliefs or whether they are rational or otherwise in the opinion of the Court.

Sorabjee’s argument provoked Justice Raveendran to say that beliefs and rituals are not a subject matter here. To this, Sorabjee replied that the object of worship cannot be taken away. Justice Raveendran asked: “ Hindus worship Bhoomimata, does it mean earth cannot be touched? Rivers like Narmada and Ganges are worshipped. Does it mean you can’t touch them. They are not demolishing Ram Setu. Just 300 meters of the Setu will be touched. Should it be considered demolition or change, without affecting belief. Himalayas are also worshipped. So what is your principle? Tirumala hills are held sacred, does it mean you cannot build a road there?”

Sorabjee first said his colleagues, C.S.Vaidynathan and Parasaran will answer this question, and he would only give a legal answer. Sorabjee said you cannot do anything which changes the essential character of the object, being worshipped. Justice Raveendran then asked what was the test. “Is it one handful of sand, or 300 meters?” Clearly exasperated, Sorabjee then said “we are not concerned with mountains, lakes etc. Ram Setu has special significance”.

Occasional Digest of Law and Other Things

It is proposed to start an occasional digest of important news concerning law, court affairs, and public policy with necessary links - on issues which could interest us, but which we could not discuss in detail due to lack of time. Readers/Contributors are requested to suggest any significant missing links/news, by emailing me. They are also welcome to offer their comments/analysis by using these links. To make it to this list, it is necessary to link to the original document or decision. Here is my list for this week:

1. The Central Information Commission's direction to make funding of political parties transparent.

2.Indian doctors' legal victory in U.K.: The Bapio case judgment of House of Lords & The Hindu story by U.K.Correspondent.

3.Cabinet clearance for changes to Cr.P.C.(Amendment)Bill, 2006: 128th Report of the Parliament Standing Committee on Home Affairs on the Bill is here.

4.Split verdict of Supreme Court on communal riots: Judgments of justices S.B.Sinha and H.S.Bedi are here .

5.A committee set up by the Planning Commission recommends dialogue with Maoists to tackle Leftwing Extremism. The report of the committee is here.

6.Justice J.S.Verma's interview to Times of India on Judicial Accountability

Notes on the hearing of a death penalty case in the Supreme Court

Reading my notes on the hearing of the case, Swamy Shraddananda @ Murali Monahar Mishra v.State of Karnataka, in the light of the Amnesty International India’s report on death penalty (subject of the previous post), was an eye-opener. The case came up for hearing before a 3-Judge Bench of the Supreme Court (Coram: Justices B.N.Agrawal, G.S.Singvi and Aftab Alam) on April 30, following a split verdict by a Bench of Justice S.B.Sinha and Justice Markandey Katju last year. Both the Judges had confirmed his conviction, but differed on sentencing. The facts of the case may be gathered by reading the judgments. The judgments are here and here.

Justice Sinha, points to a weak link in the circumstantial evidence in paragraph 95 of his judgment. He also said in paragraph 97 that it can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It could, of course, be a rare incident. In Paragraph 99, he said in view of his partial confession to the High Court at the time of sentencing, life sentence would serve the ends of justice. In paragraph 100, he said life sentence must mean life sentence. Depending on the same facts, Justice Katju held that this was the rarest of rare case, and therefore, death penalty should be imposed on the appellant.

Sanjay Hegde, represented the State of Karnataka before the Bench, while U.R.Lalit represented the complainant. According to Hegde, no power of remission can be exercised by the State, before the accused completed 20 years in jail. Justice Aftab Alam pointed to Section 433A Cr.P.C. which restricts the power of remission/commutation, by laying down that the convict should have served at least 14 years in jail. He asked Hegde whether it was his submission that life is a substitute sentence for death and if it is, it should carry the same attributes.

During the hearing an interesting aspect of Section 54 and 55 IPC came to light. Section 54 says in every case in which sentence of death shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for any other punishment provided by this Code. Justice Alam asked whether it would mean a death sentence could be commuted to just fine, whereas under Section 55, life imprisonment can be commuted for a term not exceeding 14 years. Hegde agreed that it is a paradox. In case of death, there is leeway. He suggested that the Court can issue a directive to sentence an accused in line with the legislative policy under section 433A Cr.P.C. He also pointed out that S.433A does not mean the convict can be released immediately after he completed 14 y ears.

Hegde, applying the test laid down in Machhi Singh case, (1983), argued that this was an extremely brutal, grotesque, diabolical, murder executed in revoltingly dastardly manner. Justice Alam asked whether these were not subjective phrases. Hegde then narrated the facts of the case, to argue that the case fell under at least three of the five tests laid down in Machhi Singh.

U.R.Lalit, even while arguing for death penalty for the appellant, referred to the pre-Bachan Singh/Machhi Singh days as “good old days”. When Justice Alam asked him why he so considered the period, he said it was his personal view. He said the rarest of rare doctrine did incalculable harm to society. He said: “Assassins are hired, contract killings take place…” What he meant was that the doctrine was not deterrent enough. He was of the view that the direction in Paragraph 100 of Justice Sinha’s judgment (wherein he said life means life) will not whittle down the power of the executive to commute sentences. Otherwise, it will create tremendous imbalance, he said. Justice Alam said unless the period of sentence is determined, there can be no remission, as you can’t deduct from infinity. “If you accept life means life, there is no remission”, he said.

Lalit suggested that it was his personal view that even if one judicial authority (among trial court, High Court and Supreme Court) said death penalty should not be imposed, then it should not be imposed. But apparently differing from his personal view, (if one takes Justice Sinha’s view against imposing death penalty as a possible veto) he said death penalty is the right choice in this case. Justice Alam pointed out that the fact that the murder was pre-planned was itself not a requisite to call it as the rarest of rare case.

The submissions of the appellant’s counsel also deserve mention. He began suggesting that this was not the rarest of rare “circumstance”. Justice Agarwal sought to correct him, by suggesting that the test was whether it is the rarest of rare case, and not circumstance. Justice Singhvi asked him why he was called a “Swami”. The counsel said it was just like any other name. When the counsel suggested it was entirely based on circumstancial evidence, (a point which was also made by Justice Sinha to argue against death penalty), Justice Alam said he had already been found guilty by all the courts. Justice Alam asked him whether he supported Justice Sinha in Paragraph 100 wherein he said the appellant must be in jail for 20 years, or Justice Katju, who imposed death penalty. The limited choice posed by the Judge appeared to confound the counsel. The counsel then referred to exemplary record of the appellant during the imprisonment, to suggest that he could be reformed. But Justice Alam brushed it aside, to suggest that this could be a ground to consider remission. I wondered if the appellant had hired an experienced senior counsel, it would have made a difference between life and death.

THE EIGHT FATAL SINS OF ASHOK KUMAR THAKUR V. UNION OF INDIA

I apologize for my delayed comments on this issue. It took me quite a while to review and internalize these judgments. This judgment had created more cobwebs than it had cleared. Ascertaining the ratio itself was an exercise in and of itself. I was appalled at the quality of judgment writing which has hit a new low. The judgment of Justice Pasayat was very confusing.

Ashok Kumar Thakur is not about whether quotas should continue. It was not about quotas v. merit. Affirmative action for the disadvantaged classes is a constitutional mandate. The only question is who gets them. If the program is designed in a manner which undermines equality and reinforces caste (which Ambedkar termed “anti-national”), it upsets the entire constitutional scheme of promoting equality and the judiciary has to scrutinize it. Unfortunately the judiciary did not live up to its job. The judgment suffers from eight fatal flaws listed below. Each of them deserves an independent post. But I do want to present them when the issue is still alive.

First, and the most fatal flaw of this judgment is that it deepens the institution of caste based on an improper understanding of the text and the context of the Supreme Court ruling in Indra Sawhney. Indra Sawhney does not permanently embed caste as a starting point for identifying backward classes. Indra Sawhney only blessed caste, it did not mandate it. Caste might have been a legit imitate starting point for identifying backward class in the 1970 and 1980’s when the Backward Class list was prepared, but whether caste is still a proxy for backward class in 2008 can only be decided based on an empirical independent investigation. Not only did Indra Sawhney preclude a more scientific method for identifying backward classes, it mandated it by requiring a periodic independent investigation. The judges had a rare opportunity to go beyond caste by mandating the government to prepare a BC list, which was not based on caste. That would have been consistent with Indra Sawhney and would have taken the politics out of the entire business of affirmative action.

Second, the judgment chants, but does not enforce or substantiate the empirical investigation requirement laid down in Indra Sawhney. Indra Sawhney laid down several requirements regarding a periodic investigation of backward classes to ensure that only the deserving get the benefits. Indra Sawhney contemplated that every ten years the Backward Classes Commission would lay down the criterion for backwardness and based on those criterion, it would identify classes who could be called “ backward classes”. Between each survey period, if any person/group felt that it was unfairly excluded or included, it could approach the BC Commission which would decide based on the criterion laid down to identify backward classes. A similar process is not contemplated for SC and ST because “backward class” is a shifting class and not a fixed class like Scheduled Caste and Scheduled Tribes. “Backwardness” is a relative state of affairs based on the general advancement of the society and therefore the need for a periodic review. But over the last two decades very little action has been taken. Caste has become a “one-way ticket” to the backward class list. Once a caste is identified, very rarely has it gone out of the list. The BC has not been revised in many states from the seventies. The judgment lost focus on these requirements and instead gives gave some broad unenforceable guidelines on investigation. The judges, Justice Balakrishnan in particular, brushed aside this entire issue by saying that the identification of BC list was not based solely on caste and therefore it was proper. He equated the power of the Backward Class Commission to decide the function of inclusion and exclusion with the requirement to conduct an independent investigation. They were never meant to be the same.

Third, the judgment confuses “backward class” under Article 15(5) (and 15(4)) and Article 16(4). Under 15(5) (and 15(4)), numerical majority is irrelevant. A section of the society can comprise 70% of the population and still be backward. But under Article 16(4), a section of the society must not only be backward, but must also be “inadequately represented.” It is only in Article 16(4) that population and its representation in state services acquires significance and not under Article 15(4) and Article 15(5).

Fourth, the judgment messed up judicial review standard in affirmative action by dumping strict scrutiny. India never had complete strict scrutiny, but only partial strict scrutiny. Dumping the entire strict scrutiny standard is like dumping the baby with bath water. And the court only confused the existing standard. Justice Balakrishnan mentioned, but did not flesh out the alternative “ex facie unreasonable” standard. Instead, he did the unthinkable by putting the burden on petitioners to show that the backward classes do not constitute 27%. Although that’s an irrelevant question because of reasons pointed above, the burden is always on the state to justify affirmative action and not the petitioners. That was the holding in Indra Sawhney and in the cases before that.

Fifth, the only achievement of this judgment was its strong emphasis on creamy layer, but it confused this area by lack of clarity on educational creamy layer. Mr. Venkatesan in his blogs said that chief justice has clarified that there was no such ruling. The Chief Justice has no power to issue such a clarification. Only a Supreme Court bench can issue such a clarification. Once a judge delivers a judgment, he does not have the power to issue a clarification. (unless there is a review petition or another bench interprets that judgment)

The absence of any mention of this aspect in the final order – whether signed by all the judges or not – is of no consequence. It has been a settled principle that what matters is the reasoning of the judgment and not the final conclusion. (The SC had ruled that the final conclusion in Kesavananda Bharti has no legal significance.)
There is a strong justification for creating an educational creamy layer exception. The justification given in Indra Sawhney for creating a creamy layer is because they as members of the class need to share common characteristics and a creamy layer no longer shares those characteristics and therefore the connection ceases with the backward class. The same logic applies to an educational creamy layer. Once a person from a backward class graduates, he is no longer “educationally backward”. He loses that connection with the rest of the class and he does not share those characteristics. So even though he might come from “socially and educationally backward class”, he is no longer educationally backward by virtue of his educational attainments. His connection with that class ceases.

Sixth, the judgment stamped the poor constitutional advice given to the HRD Ministry by reconciling Article 15 (5) and Article 15(4). Before Article 15(5), reservation for OBC’s in state aided institutions could be provided under Article 15(4). Several states used that mechanism. In case of unaided or private institutions, the judgment in T.M.A. Pai and Inamdar precluded reservation and admission was to be only on merit. The court said that reservation would be an unreasonable restriction under Article 19(1)(g). The primary purpose of Article 15(5) was only for private institutions. For state institutions, Article 15(4) was already there. Instead of recognizing this simple constitutional history, the judgment went into this elaborate discussion about reconciling Article 15(4) and Article 15(5). There was no such need. The government could have provided reservation in IIT and IIM and other central government educational institutions even without Article 15(5).

Seventh, the Court deviated from precedent when it declined to hear the constitutional challenge of affirmative action in unaided educational institutions. The reason – there were no private institutions before the court. The court could not have thought of a poorer excuse! This issue came up extensively. The entire point of Article 15(5) was about private unaided institutions. The court assumed that only private institutions had the right to question caste-based reservations in Article 15(5). Both the teacher and the students and even the general public have the right to question an amendment which mandates caste based quotas in private institutions which do not take support from the state. It is obvious that standing was just an excuse to defer this issue to a future court.
Surprisingly Justice Balakrishnan – who declined to decide the constitutional validity of reservations in private colleges since the Act in question only provided reservation in central government institutions – decided the issue of creamy layer for SC’s and ST. Even that question was also not in issue since Act was only confined to providing reservation for OBC’s in central institutions.

Eighth, the judges never considered the issue of proportionality. In India, the affirmative action discourse has been focused only on quotas. Unlike the United States, the primary purpose of affirmative action in India is to compensate for past discrimination and not promote diversity or any other objective. In such a case, the compensation must be proportional to the deprivation suffered. Quotas stand at the end of the chain. Some forms of deprivation may not justify even a full quota, but possibly a milder form of affirmative action in the form of increase in marks or similar measures. Again, this can happen only though an independent investigation which the judges simply did not focus on.

Lethal Lottery: A significant study on the death penalty in India

The Amnesty International India and People’s Union for Civil Liberties, Tamil Nadu and Puducherry have together brought out a significant study of the Supreme Court judgments in death penalty cases from 1950-2006. Researched and written by Bikram Jeet Batra, consultant to AII, the report has two parts. Part I, written by Dr.V.Suresh and D.Nagasaila, of PUCL-TN&P, is on the need to re-examine the Death Penalty in India. Part II is the crux of the report, with the study of Supreme Court judgments. The report and its summary can be read here.

As it is the first major study of Indian Supreme Court’s judgments in death penalty cases, its findings deserve a close scrutiny. The report analyses 726 reported judgments of the Supreme Court, which resulted in confirmation of death penalty to the convicts. Of these cases, 86 are such in which the three courts –trial court, high court, and the Supreme Court gave three different verdicts – a factor, which is reasonably sufficient to avoid death penalty, and which was the basis for an internal rule of caution within the Supreme Court for a number of years. As Dr.V.Suresh pointed out, the Supreme Court has shifted this caution, because of increasing crime.

Bikram, while speaking on the subject, said no Judge seems to have a clear meaning of what constitutes rarest of rare, and the award of capital punishment after Bachan Singh judgment, (1980) continues to be as arbitrary as it was earlier. To cite one example, one of the conditions laid down in Bachan Singh to determine whether the case falls under the rarest of rare category, was that the Prosecution should show evidence that the accused is beyond reform. But this condition is always observed in the breach. In none of these cases, he claimed, the prosecution had given evidence for inability to reform the accused. Courts generally considered a case as the rarest of rare, by examining whether the crime was gruesome and brutal, even though all murders will necessarily be gruesome and brutal. Citing several cases, he drew home the point that the Court was inconsistent in several of its decisions. The system is deeply flawed, arbitrary, and reflects deep class divisions, he said.

Considering that it is the legislature which can abolish death penalty, is this report aimed as an appeal to the Judiciary to reexamine the Bachan Singh judgment by a larger Bench, and evolve a clear sentencing policy? According to the authors, clear guidelines are not possible to evolve. Bikram does not believe that the judiciary is any longer interested in settling the constitutionality of the issue of death penalty. It is for the legislature which has to take the initiative, and given the lack of consistency in judicial decisions, take the road to the abolition of death penalty, the authors said.