Unenforced legislations - reconsidering AK Roy

In a recent post on a related matter, I mentioned the judgment in AK Roy:

'In AK Roy v Union of India the duly enacted 44th Constitution Amendment Act 1978 provided that it shall come into force when notified. The government notified all but Section 3 of the Amending Act which sought to amend Article 22 of the Constitution dealing with preventive detention. The Supreme Court held that it could not issue a mandamus asking the government to notify it and bring it into force. If this is true of a constitutional amendment, it is definitely true of a mere legislation.Many other duly enacted laws which had similar provisions granting discretion of notification to the Executive have not been brought into force, including the Hire Purchase Act, 1972 (which I think continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005). This article documents several others suffering a similar fate.'

It is very interesting to compare AK Roy and several subsequent cases which have taken the same route with a British case decided by the far less 'activist' House of Lords:

In Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) 2 AC 513 (HL) the House of Lords held that it was unlawful for the Home Secretary to introduce changes to a scheme which were incompatible with an Act of Parliament. Parliament enacted a provision for compensating victims of crimes, with a clause empowering the Secretary of State to bring it into force. The Secretary not only did not bring it into force, but also issued an order instituting a less generous scheme. The majority held that although it was within the Secretary's discretion to decide when it was appropriate to bring the law into force, he was under an obligation to keep the matter under continuing review. The institution of the less generous scheme was a failure of this duty since it was clear that the Secretary did not intend to bring the law into force at all, and thereby frustrated Parliament's will.

The doctrine of reasonable expectations also played a role. To quote Lord Brone-Wilkinson:

"Although the victim of a crime committed immediately before theWhite Paper was published had no legal right to receive compensation inaccordance with the old scheme, he certainly had a legitimate expectation thathe would do so. Moreover, he had a legitimate expectation that, unless therewere proper reasons for further delay in bringing sections 108 to 117 of theAct into force, his expectations would be converted into a statutory right. Ifthose legitimate expectations were defeated by the composite decision of theSecretary of State to discontinue the old scheme and not to bring the statutoryscheme into force and those decisions were unlawfully taken, he has locusstandi in proceedings for judicial review to complain of such illegality."

Interestingly, both the majority and the minority employed separation of power arguments. The majority held that it was for the Parliament to repeal a law, not the Executive. The minority reminded the Court of its own limitations.

The majority opionion makes sense. There are several instances where it is quite clear that the Executive has decided never to implement a law, like the constitutional amendment in AK Roy. It has thereby frustrated Parliamentary mandate - surely the discretion to bring into force does not include the choice of never bringing it into force. It is easy to say that those aggreived should go back to the Parliament - but Parliamentary time is a valuable resource. In any case, the Parliament has expressed an intention and has not said anything to the contrary - shouldn't it generate some obligations on the Executive? In fact, if it is unhappy with a law, shouldn't it be the government's responsibility to go back to Parliament to get it repealed (like it did in the case of the Freedom of Information Act 2002) rather than it frustrating the legitimate expectations of the citizen as well as the will of the Parliament?

Even international law (I think) has comparable rules, where a country which has signed a treaty but not ratified it is nonetheless has the obligation to refrain from any action contrary to the spirit of the treaty.

Perhaps the courts cannot issue mandamus to bring the law into force. But surely there is a middle way, like in Fire Brigades Union? The challenge of coming up with appropriate remedies should not result in the denial of the right itself. In some cases, even a mere judicial declaration of the continuing obligation on the Executive to consider the date of implementation and seeking evidence to demonstrate the fulfilment of this duty might suffice.

Update:
This article discusses a related issue of bringing different provisions into force at different times, creating confusion:
'The Supreme Court was confronted with this predicament in a recent case, J Mitra & Co Pvt Ltd vs Assistant Controller of Patents & Designs.
The judgment described the case as a “classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of the Patents (Amendment) Act 2005”. There were amendments in 1999 and 2002, making significant changes in the patent law. But some sections were not notified, and others telescoped into the later amendments, creating a bewildering situation. This is what happens when different dates are appointed for the coming into force of different parts of the same Act, and the government does not enforce some portions.'

Venkatesan, thanks for pointing this out.

Update 2:
Apparently Aeltemesh Rein v. Union of India decided by the Supreme Court has already upheld a 'duty to consider' similar to that in Fire Brigades Union. I haven't read the case myself yet, but picked this up from a note Vikram sent (thanks) - am I correct in this? Has anyone else seen this case?

NHRC under a cloud

The Salwa Judum case in the Supreme Court has taken a curious turn with the petitioners questioning the impartiality of the NHRC, which was asked by the Supreme Court to submit a report on human rights violations by the Salwa Judum. One of the petitioners, Nandini Sundar, has referred to a recent story in Economic Times as the basis for her apprehensions that the NHRC's report to the Supreme Court, submitted on August 26, may not be objective. She said in a press release: "The leaking of the report to Economic Times clearly amounts to contempt of court. More disturbingly, the fact that the report was most likely leaked by the respondents - who should not have been in possession of a copy - casts into doubt the impartiality and independence of the NHRC."

Nandini Sundar quotes NHRC as saying that the ET report is twisted and not fully accurate. In this account, the NHRC suggests that the attacks on the police party accompanying them by some people did not deter the team visiting the areas, but does not give any details of the attacks. Considering that the petitioners have described the police as the principal violators of human rights, NHRC's incomplete reference to an incident of attack on the police during the team's visit, is likely to be misconstrued. Why refer to this incident at all in this manner, if the team can describe it in the report?

The next hearing of the case is on September 5, after which it appears, the report will be made public.

J&K: Pro and anti-secession

The J&K crisis has led to a renewed debate on whether the State deserves independence from India. Apologists for independence include Arundhati Roy, Vir Sanghvi and S.S.A.Aiyar. Those who argue against independence include Manoj Joshi, K.Subrahmanyam and V.P.Malik.

My heart lies somewhere between these two extreme positions. But it seems to me that analysts like K.Subrahmanyam confuse (read this)the republic's basic responsibility to sustain the fundamental ideals that make India such as secularism, with the perceived imperative to use force against what in reality, are aspirations for genuine autonomy, masquerading as azadi.

One can see similar contradiction in Malik's article. Malik invokes the French philosopher Ernest Renan to suggest what constitutes a nation: it is not speaking the same tongue, or belonging to the same religion or ethnic group, but having accomplished great things in common in the past, and the wish to accomplish them again in future.

Renan's lecture on nationalism needs to be read in full to understand this 19th century philosopher. He said: "A nation's existence is, if you will pardon the metaphor, a daily plebiscite, just as an individual's existence is a perpetual affirmation of life. That, I know full well, is less metaphysical than divine right and less brutal than so called historical right. According to the ideas that I am outlining to you, a nation has no more right than a king does to say to a province: "You belong to me, I am seizing you." A province, as far as I am concerned, is its inhabitants; if anyone has the right to be consulted in such an affair, it is the inbabitant. A nation never has any real interest in annexing or holding on to a country against its will. The wish of nations is, all in all, the sole legitimate criterion, the one to which one must always return."

Supreme Court's double standards on forest matter

My interest in the T.N.Godavarman Thirumulpad vs. Union of India got rekindled after the J&K Government's controversial decision not to seek the Supreme Court's opinion whether it could hand over the forest land to the Shri Amarnathji Shrine Board for non-forest purposes. Today's article by Sunita Narain in Business Standard exposes the Supreme Court's double standards in this case - one for the rich and the other for the poor, the former being allowed to get away with the use of forest land for non-forest purposes by paying a pittance, while the poor being denied any right to use the forest land for sustainable use. For those interested in tracking this case on a regular basis (the case comes up for hearing before the Forest Bench once in a week) this site is immensely useful. The credit for maintaining this site up to date must go to this dynamic environmental lawyer and activist, Ritwick Dutta, whose dedication to the cause has been widely recognised. Dutta explains his interest in this interview.

The importance of speaking orders/judgments

Time and again, the Supreme Court reminds the courts below of the importance of speaking orders. State of Himachal Pradesh v. Sardara Singh is the latest of such reminders, which deserves to be noticed. In this case, the High Court rejected the application for grant of leave to appeal.

Justice Arijit Pasayat said in his judgment: "The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all.

"Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court."

Dhavan's response to Venkatesan

Dr. Dhavan has sent the following in response to Venkatesan's critique. I have his permission to post it on the blog:

"Wrong But Delightful: A Response to V. Venkatesan

- By Rajeev Dhavan

1. What a wonderfully provocative review!

2. The main debate is on whether the Parliamentary debates were fulfilling (see Book pp. 34-5). Clearly they were not.

3. It is the OBC bench that was utterly confused about whether the creamy layer applied to SCs and STs (see Book pp. 227-233) where the contradiction is shown.

4. The important aspect of Nagraj and Coelho is the caveat that, 50% reservations, creamy layer and compelling necessity are essential in respect of future actions even validity of the constitutional amendments is upheld (see Book pp. 238).

5. Alas, you have reviewed only the epilogue (see Book pp.199 ff) and my supposed reversal of roles, but not the book.

6. I love your writing – right or wrong!!"

Rajeev Dhavan's new book on quota

Understanding Rajeev Dhavan is a challenging exercise - whether in the courtroom or in print. Here, (pp.5-6)I have done my best, of course as a critique.

J&K crisis: improper diversion of forest land

As J&K continues to pose a challenge to New Delhi, the spotlight has certainly moved away from the initial flaws of the decision makers in Srinagar which precipitated the crisis. As I analysed the facts leading to the diversion of forest land in favour of the Shrine Board, I found that the State Law Department was correct in suggesting that perhaps it would be necessary to submit the proposal for diversion of forest land for non-forest purposes for clearance by the Supreme Court's Forest Bench, in conformity with the Court's orders in the T.N.Godavarman case. The suggestion was unfortunately overruled by the the Deputy Chief Minister, who accepted the view of the Advocate General that the State was not bound by the Supreme Court's orders in the Godavarman case. Here, I have explained why the State AG and the Dy. CM were wrong. This is not to suggest that had the matter been referred to the Supreme Court, it would not have agreed to the diversion. But following the Court-laid down procedure would have at least helped to defuse the situation, as the Government could have been spared of the blame of partisanship by either region. This need not be construed as another form of Article 143 route which Rajeev Dhavan had suggested as a way out. Right or wrong, the Supreme Court has taken upon itself the responsibility to manage our forests, throughout the country, including J&K. Therefore, under the pretext of Article 370, the State cannot claim immunity from the mechanism and procedure laid down by the Supreme court.

Analyzing India's OIympic Performance

With the curtains having come down on the 2008 Summer Olympics, it is worthwhile pondering over the reasons for our traditionally dismal performance in the world's greatest sporting event. While it is true that our medal tally has gone up this time to three with the first ever Gold being won in an individual event (congratulations to Abhinav Bindra for that), the number is still far too small for comfort and discomfiting particularly when compared to other large countries across the world including, most notably, our northern neighbor China.

Anirudh Krishna and Eric Haglund published an article in EPW a few weeks ago analyzing this very question (a brief item on their findings is here). Previous investigators have shown that per capita GDP and population are key predictors of a nation's medal tally. They point out that according to a model taking into account both these factors, India was expected to win 19 medals at Athens (2004) but actually managed only one. Besides, GDP has grown consistently over the last six decades since independence but our olympic victories have not (see here for a summary of our successes since 1900) - on the contrary, we almost regularly won a single Gold in pre-independence days in events post-1928, a success we have been unable to repeat afterwards. Other factors such as climate and whether the nation happens to be hosting the Olympics also have a significant association with the medal tally but these too cannot account for the extreme paucity in our case. Likewise is the case regarding our political system: single party and communist ruled nations do have a consistently higher medal tally (Johnson, 2004) but most democratic nations fare better than we do making it an unlikely explanation for our failure (read this and this post on the Becker-Posner blog for a discussion on the reasons for this).

The authors argue that it is not the actual population of a country but the effectively participating population that matters, i.e., the proportion of the public that is healthy, has access to education and most importantly, is well connected with the outside world. Good health is essential to compete in sports; schools provide the avenue where talent finds recognition and information via the mass media raises the aspiration levels of society or so goes the reasoning. As a proxy to measure the last of them, they estimate the number of radios per 1000 residents. They show that their model which incorporates these factors does a better job of explaining inter-country variation than models using population and GDP alone. They also give the example of Jamaica, a low-income country with 430 radios/1000 residents which is well above the world median figure of 258, winning many more medals than a simple analysis using these two factors would have predicted.

The trouble is that their predictions are limited to a single cross-sectional event, namely, the total medal tally in the 1996 Summer Olympics. While they do acknowledge this fact, how likely is it that their assertions would survive in a longitudinal case study? Connectivity and access to information have undoubtedly improved in India over the last six decades and so have education and health care to some extent. At the very least, our medal tally ought to have seen a modest improvement over the years but none is evident (the current tally of 3 is no doubt an all time high but unless maintained in the future, it would have to be considered an outlier). As for the example cited, it may well be that Jamaica has a higher density of radios than India but even then, is the overall number of connected people (which is what really matters to determine the effectively participating population) lower than in the Caribbean country? The same question needs to be asked about education and healthcare as well: even assuming that only a fraction of our roughly 300 million strong middle class enjoys access to these amenities, is that number not sufficient to match that of any small sized country across the world? It is therefore difficult to believe that our own inability to match the 11 medals that Jamaica won - nearly four times our own tally - is due to our lack of connectivity.

Finally, all of this would only explain our failure if it is the outcome of poor talent at the recruiting stage. The study presents no evidence of that. If our sportsmen/women match those of other countries in their performance before undertaking professional training but subsequently fail to excel, the system that prepares them for such events is the likely culprit. One of the reasons for the phenomenal success of communist countries has been attributed to their rigorous training methods. A previous study also found that in both labor-intensive and physical capital intensive sports, higher income countries performed better than their poorer counterparts though the difference was much more pronounced for the latter kind indicating that financial investment matters for excellence in every sport albeit in different forms - perhaps more for equipment in some and better training in others. K.P.S.Gill, not surprisingly, blames the government for failing to help build turf stadiums and says that this contributed to the decline of Indian hockey in recent years.

The authors may well be right that people in India do not aspire to take up sports in a big way. That however is not something that can be quantified by such broad social indicators. This is part of a larger criticism I have with this study: they approach this issue much like any other developmental question and seek to argue that economic advancement of society will also inevitably lead to Olympic success and vice versa. As pointed out previously, the inverse temporal relationship between the two renders that claim questionable in India’s case. Furthermore, it is eminently possible to have development even absent a focus on sports in which case, higher income and connectivity would still translate only to mediocrity of the many, not the excellence of the few. The exalted performance vital to success in such competitive events involves identifying the talented outliers and subjecting them to intensive training, neither of which are considerations in formulating policies for social development. Future studies would do well to take these factors into account.

R.K.Anand, I.U.Khan and Administration of Justice

The Delhi High Court's judgment has significant dimensions, and will be debated in the coming days. For the moment, I am just giving the link to help co-bloggers to reflect on this judgment, which has already stirred up a controversy of sorts. In this article, Soli Sorabjee feels that the High Court erred on leniency. Rajeev Dhavan has a different perspective on this here.

Assessing a Home Minister

The Union Home Minister, Shivraj Patil has been the butt of criticism in the media for his handling of the J&K crisis. Much of the criticism, it appeared to me, was without substance. This article in Tehelka tries to make a balanced appraisal of the Home Minister's record in office, but is still inadequate. Among other things, the author says the criticism of HM is indeed his strength, and a certificate to his non-partisan record. As Home Minister, he is expected to keep federal relations on an even keel, and that is what he has achieved by strictly confining himself to the Constitution. While perceptions do influence an assessment of a Minister, there is need for fact-based review of a Minister's omissions and commissions, which I find missing in the media.
UPDATE: Read Prabhu Chawla's interview with Mr.Patil in India Today here.

Strict Scrutiny after Thakur

Has Ashoka Thakur buried the concept of stict scrutiny in Indian jurisprudence? In this recent article published by the Journal of the Indian Law Intitute, I argue that it is a good idea that may yet be revived without overruling Thakur. The issue has been discussed previously on this blog.

Abstract:

'This article makes the case for applying a rigorous standard of review for constitutional adjudication under article 15 of the Indian constitution, which guarantees freedom from discrimination. Drawing upon the strict scrutiny jurisprudence in the United States and the proportionality jurisprudence in Europe, the article argues that a rigorous standard of judicial review in India can provide a more meaningful protection from discrimination. However, it warns against the wholesale importation of the United States jurisprudence and makes the case for excepting affirmative action measures from a rigorous standard of review. It also argues that the grounds on which discrimination is prohibited should be expandable rather than frozen. The discussion analyses two recent Supreme Court decisions on equality jurisprudence to further the argument - Anuj Garg v Hotel Association of India AIR 2008 SC 663, and Ashoka Kumar Thakur v Union of India 2008 (5) SCALE 1.'

Full text is downloadable at the link above. Comments are welcome.

A landmark judgment in defence of environment

The Supreme Court's judgment in the case of A.Chowgule and Co.Ltd. vs. Goa Foundation &Ors delivered on August 18th by Justices Tarun Chatterjee and Harjit Singh Bedi is truly landmark. The case involved the interpretation of the "forest land", the need for prior approval for the diversion of any forest land for some other purpose, and the effectiveness of reforestation/afforestation. On each of these issues, the Judges were unequivocal, and resisted the attempt of the appellants to circumvent the law.

Mercy Petitions: The mystery deepens

The Centre has reportedly said that it is not responsible for the delay in the execution of the convict in the Parliament attack case, Afzal Guru. But this contradicts the Secretary to former President, A.P.J.Abdul Kalam, P.M.Nair's claim - revealed in his book, The Kalam Effect, that the former President forwarded all the petitions received by him to the MHA, and he did not hear from the MHA on these till his retirement from office. The President, on the question of mercy petitions also, decides on the advice of the Council of Ministers, expressed through the MHA. If what the Minister of State says is correct, then the mercy petitions along with the MHA's advice must have been sent to Rashtrapati Bhavan after Kalam's retirement and the new President, Pratibha Patil assumed office. Why the Government is now choosing to attribute delay to the President is a mystery.

James Laine case in Supreme Court: An update

The matter relating to lifting of Maharashtra Government's ban on James Laine's book, Shivaji came up for hearing before Justices Arijit Pasayat and Mukundakam Sharma today, and has been adjourned for four weeks. In its notice to Laine, the Court sought to know whether he is agreeable to deletion of paragraphs found objectionable in the interest of justice. According to our sources, James Laine has refused to accept the Court's suggestion to delete those paragraphs. More on this next week.

PILs & Justice Katju

The study of PILs in the Supreme Court should indeed be fascinating. To look for guidelines on which cases get admitted and which do not (at least in Justice M.Katju's court) would be an education in itself. Considering Justice Katju's general antipathy towards PILs, if he does make an exception towards a PIL, it should make us take notice. The PIL seeking guidelines for reporting by media is one such which should be of interest. The HT report on this reveals Judges' attitude to the issue. The latest order and the office report are here and here. An article in EPW in the latest issue by Videh Upadhyay throws further light on this.

Social Justice :Dream or Reality?

This year's Rosalind Wilson Memorial Lecture was delivered at IIC, New Delhi, by Justice B.N.Srikrishna. IIC's website has this review by Anjali Ghate, which also invites comments and discussion on the subject with the speaker. Rosalind Wilson was a champion of social justice and rights of the child, who adopted India as her home, and died before she was 50. The lecture is organised every year on a specific subject by an eminent speaker by Rosalind Wilson Memorial Trust. This was the 16th lecture held on July 28th.

Official Secrets Act invalid?

A very interesting article in the Outlook claims that the Official Secrets Act, 1923 was never notified in the Official Gazette and is therefore not law. To quote:

'Here's the untold story of the Official Secrets Act (OSA) 1923:
It was passed in April 1923 by the Legislative Council.
The Act was never notified in the Gazette of India.
To become law, every Act must be notified in the Gazette of India. The National Archives of India, ministries of Home and Law say they are not in possession of any such notification. None exists in the 1923 Gazette of India either.
The OSA was amended twice, in 1951 and 1967, and made more stringent. But only the amendments were notified in the 'Extraordinary Gazette of India'.
Legal luminaries say that if an Act is not notified, it is an "invalid" law.'

I am not sure where the requirement of notification in the official gazette comes from. It is understandable if an Act itself provides, as it often does, that it shall come into force on such a date as notified by the government in the official gazette. In such cases, sometimes governments fail to notify the Act and the legal position is that although the law is 'valid', till such notification, it is 'unenforceable'.

In AK Roy v Union of India the duly enacted 44th Constitution Amendment Act 1978 provided that it shall come into force when notified. The government notified all but Section 3 of the Amending Act which sought to amend Article 22 of the Constitution dealing with preventive detention. The Supreme Court held that it could not issue a mandamus asking the government to notify it and bring it into force. If this is true of a constitutional amendment, it is definitely true of a mere legislation.

Many other duly enacted laws which had similar provisions granting discretion of notification to the Executive have not been brought into force, including the Hire Purchase Act, 1972 (which I think continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005). This article documents several others suffering a similar fate.

But the Official Secrets Act 1923 does not have any comparable clause which allows the government the discretion to fix a date of its enforcement by notification. Indeed, it has no clause that specifies when it will come into force. Thus, Section 5 of the General Clauses Act, 1897 must apply:

'5. Coming into operation of enactments.- (1) Where any Central Act is not expressed to come into operation on particular day, then it shall come into operation on the day on which it receives the assent.
In the case of a Central Act made before the commencement of the Constitution, of the governor-general, and in the case of an Act of Parliament, of the President.
Unless the contrary is expressed, (Central Act) or Regulation shall be construed as coming into operation immediately on the expiration of the proceeding its commencement.'

I could not find any requirement anywhere that if the Act itself does not require it, a notification is essential for its validity or enforcement. If someone knows of a law or constitutional provision which provides this, please enlighten.

This, of course, may not be the end of the argument. One of the central requirements of rule of law is that a law is publicised. Without official publication, citizens have no means of finding out what the law is, and therefore cannot be expected to obey it. The Supreme Court has often relied upon the rule of law as a significant constitutional value, underpinning Article 14. This line of argument may be pursued to say that the Official Secrets Act 1923 is unconstitutional because of non-publication.

UPDATE -

Arundhati Katju left this comment:
'The Official Secrets Act was notified in the Gazette of India, 14th April 1923, after receiving the assent of the Governor General on 02.04.1923. The article was somewhat surprising. I would be happy to supply a copy of the notification on request.'

Thanks for pointing this out Arundhati. If true, the response of the National Archive to an RTI application that it did not have a copy of the Gazette notification is surprisingly incompetent (The letter from National Archive is documented in the Outlook story).

I have requested Arundhati for a copy of the notification - will keep everyone posted.

Conventions on Indian Speaker

Comments to my earlier post provoked me to research the subject for a better understanding of conventions on Indian Speaker. The Supreme Court in the Supreme Court Advocates-on-record Association vs. Union of India has effectively blurred the distinction between convention and the law (AIR 1994 SC 405).

Sir Ivor Jennings said in the Law and the Constitution (5th Edition, 1959):
“We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.”

In the Advocates-on-Record Association case, Justice Kuldip Singh, on behalf of the majority Judges applied the Jennings’ test to identify the existence of a convention that in the matter of appointment of the Judges of the High Courts and the Supreme Court, the opinion of the Judiciary expressed through the Chief Justice of India is primal and binding.

A similar attempt can be made to identify the existence of a convention that the Speaker must belong to the ruling party or a supporting party and the Deputy Speaker to the Opposition. First, what are the precedents? The precedents clearly suggest that Speakers starting from G.V.Mavalankar to the present Speaker, Somnath Chatterjee were chosen because they either belonged to the ruling party or a supporting party (an instance of conventions evolving with the advance of coalition politics) at the time of their election.

The only departure from this convention was in 1996 when P.A.Sangma was chosen as the Speaker during the 13-day Atal Behari Vajpayee Government at the Centre. At that time, the Government had not yet won the vote of confidence in the House, and all the parties in the House supported Mr.Sangma’s candidature. After the fall of the Vajpayee Government, Mr.Sangma’s party, the Congress, supported the successor Government.

The breach of this convention today is apparent. Mr. Chatterjee does not enjoy the support of his party, the CPI(M) for his continuance in office. A precedent can be found in Uttar Pradesh when, Keshari Nath Tripathi remained as Speaker, despite his party, the BJP being in the Opposition. But the BJP did not oppose his continuance as the Speaker. This single precedent, lacking the status of a convention, need not detract us.

Second, did the actors in the precedents in the Lok Sabha believe that they were bound by a rule?

An essential element in the question whether conventions are binding in the present is the mental state of political actors who followed such convention in the past. A study of the Lok Sabha debates during the election of every Speaker and the Deputy Speaker clearly reveals that the Members, by and large, subscribed to the convention that the Speaker must belong to a ruling party or a supporting party, and the Deputy Speaker to the Opposition.

True, there were occasions when Deputy Speakers did not belong to the Opposition. They were M.Ananthasayanam Ayyangar (1952-56), S.V.Krishnamoorthy Rao (April 1962-1967), R.K.Khadilkar (1967-1969), G.Lakshmanan (DMK) (1980-84) and M.Thambi Durai (AIADMK) (1985-89).

But each of these departures from the convention suggested a justification of a waiver on particular occasions, or exceptions to the rule. Ayyangar was elected unopposed. Other Deputy Speakers were elected after the Opposition had recorded a token contest, and expressed its displeasure over lack of consultation by the Government. It was significant that even during the hey-day of one-party rule, the Nehru Government offered the Deputy Speakership to Sardar Hukam Singh of Akali Dal twice, in March 1956 and May 1957. Hukam Singh later became the Speaker in the Thrid Lok Sabha, after joining the Congress.

In 1967, the Prime Minister, Indira Gandhi told the Lok Sabha that she would have preferred an Opposition candidate for the post of Deputy Speaker, had the Opposition been united. She restored the convention in 1969, when the Lok Sabha chose G.G.Swell belonging to the Opposition as the Deputy Speaker unanimously. Lakshmanan and Thambi Durai were rewarded as their parties were allies of the ruling party in the elections, but the Government did not depend on their support for its survival.

The near-consensus over the years that the Deputy Speaker must belong to the Opposition is intertwined with the similar consensus across the political parties that the Speaker must naturally belong to the ruling or a supporting party. A convention is established, if the parties to the convention, given an option to do otherwise, choose to support the convention. There has been nothing to prevent the Lok Sabha from choosing an able Member belonging to the Opposition to adorn the office of the Speaker. If the ruling party or the coalition wanted, the Opposition would have readily consented to it.

Third, is there reason for the rule?

The preference for a Speaker from the ruling or a supporting party stems from a complete consensus across the political parties right from the beginning in the Lok Sabha that independence and impartiality are the most important attributes of the office. This is also in sync with the general concern that the Speaker should be respected and honoured by all the political parties and individual Members of the House.

This may appear as a paradox, but in reality it is the Speaker who enjoys the confidence of all sections of the House – including that of his own party – who can ensure political neutrality of his office. The convention that Speakership should go to the ruling alliance and the deputy speakership to the genuine opposition evolved out of this understanding and the practical compulsion of keeping the delicate balance in the House. Therefore, a breach of this convention is likely to lead to the breach of another convention, that is, the neutrality of the office of the Speaker. None of these concerns may be relevant in the present context. But being relevant and the presence of sanctions against the breach of a convention cannot be the criteria to judge its binding nature. A Speaker belonging to the Opposition is tolerated because of expediency, not out of respect for a convention.

In his article in Indian Express, Mr.A.G.Noorani draws a parallel between Mr.Chatterjee and the first Indian Speaker of the Central Legislative Assembly, Vithalbhai Patel. But Mr.Noorani's view that Patel refused to quit as the Speaker is not correct. Patel appears to have vacillated first, but finally quit, giving priority to the need to follow the Congress' decision to boycott the legislatures.

Having quit the membership of Swaraj party (a distinct party within the Congress led by Motilal Nehru) on becoming the Speaker, Patel rightly felt that he was not bound by the party discipline. He rejected the suggestion that he should contribute to the party fund; instead he sent the savings from his salary to Mahatma Gandhi regularly.

On January 21, 1930, he explained his position as President of the Assembly in reference to the Resolution of the Lahore Congress, advocating boycott of legislatures.

“Whilst, therefore, I am quite clear that it would be wrong and indeed dangerous for any President to act on the mandate of any political party in or outside the House, I am equally emphatic that, circumstanced as India is, a situation might arise when in the larger interest of the country, the President of the Assembly might feel called upon to tender his resignation with a view to a return to a position of greater freedom. I have no doubt in my mind that such a situation has now arisen in the country.”

In his resignation letter addressed to the Governor General, Lord Irwin, on April 20, 1930, Patel wrote: “I have come to the conclusion that under the new conditions, my usefulness as President has ceased to exist and I should be serving the interest of my country better at this juncture by giving my open and active support to the Congress movement and endeavouring to the best of my capacity to keep on which Pandit Jawaharlal Nehru, the President of the Congress was arrested and sentenced.”

(Excerpted from Patel's resignation letter to Lord Irwin, dated 25.4.1930; Vithalbhai Patel: Life and Times, Book Two, by Gordhanbhai I.Patel, 1950, p.1139.)

The root cause of J&K turmoil

Independence Day has occasioned two insightful comments in today's papers. The Hindu carries Mr.Harish Khare's Manmohan's Task while the Indian Express carries an edit on A Pilot for Patil. Both trace the roots of the present crisis in J&K to the MHA. Mr.Khare makes the point the PM left J&K entirely to his Home Minister. I carefully read both, to know the basis of their claim. I am neither a supporter nor a critic of Mr.Shivraj Patil. But I am in search of truth.

Mr.Khare's article starts with the decision to opt for a Congress chief minister, following Mufti Mohammed Sayeed's completion of his tenure as per the PDP-Congress agreement. Mr.Khare feels the decision was flawed. May be. But is Mr.Patil responsible for this? Mr.Khare himself attributes this to AICC brass and the security establihment in New Delhi. Second, he blames the PM for not anticipating what Gen.S.K.Sinha was upto, but shifts the responsibility to MHA.

As readers, we don't know what are the inadequacies of MHA in dealing with issues of internal security, which apparently are widely recognised. It is said that Gen.Sinha as Governor pursued a blatantly partisan agenda. Perhaps true. But as readers, we would like to know the basis of the claim that Ms.Gandhi has inexplicable faith in Mr.Patil. Is this the root cause of the J&K crisis then? It seems to be a bizarre suggestion to trace the root cause of the crisis to the personal predilections of a leader outside the Government.

Had Mr.Patil challenged the bogey of land grab in time, and cut short Gen.Sinha's term, before he took controversial decisions on the land transfer,would we have been spared of this agony? Well, the HT today asks similar questions on many episodes in history, but we cannot have any definite answers whether Mr.Patil would have then emerged as the hero of the media.

The IE edit makes the similar point without elaborating why Mr.Patil is a failure, or any other person in his place would have been a success.

The issue probably is the collective responsibility of the council of ministers. Individual Ministers do have their respective areas to concentrate and look after and the PM is not expected to interfere in their day-to-day functioning, and in their over-all leadership of their ministries. But if individual Ministers do fail to deliver, does the PM have any objective yardstick to measure their performance? Or does he have to depend only on the particular Minister's skills in projecting himself in the media?

Thomas Committee on damage to public property

Justice Thomas Committee on damage to public property, which is due to submit its report to the Supreme Court on the 31st of August, 2008, was instituted lasy year in the aftermath of the violence during the Gujjar agitation. The Home Ministry website has a document giving brief information on the committee,but it is not clear whether it has invited suggestions from the public. Its main task is to suggest amendments to the Prevention of Damage to Public Property Act, 1984.

I personally think that a civil liability rather than a criminal one is more effective in such cases of mass violence for the following reasons:
- a lower burden of proof requiring 'balance of probabilities' is easier to satisfy
- it makes sense to demand compensation and punitive damages from the perpetrators
- it is fairer to make the leadership/party that organises the violent movement vicariously liable in a civil case rather than a criminal one. criminal liability only gets the foot-soldiers, while the big fish escape
- when asked to pay damages, these leaders cannot claim martyrdom that they do when convicted in a criminal case
- of course, in cases of gross violations involving murders, civil liability can be fixed in addition to criminal liability
- of course, the civil liability has to be heavy enough to hurt, to make this work. and an institutional mechanism that can deliver speedily enough will be needed (that perennial problem in the Indian legal system)

I made a similar argument in the context of the Gujarat riots here.

Terrorism and Organised Crime

I have long been intrigued why some States have been pressing the Centre to clear their Bills intended to control organised crime, even though they wish to use the law against terrorism. I have had some success in getting the Government of India come out with an answer, which I have explained in this recent article. A more detailed comparison of the four Bills, proposed by Gujarat, Rajasthan, Andhra Pradesh and Uttar Pradesh, and the Acts already in place in Maharashtra and Karnataka, than what I have attempted, will be of immense use, if only these Bills are in the public domain. I don't understand the reasons for keeping them away from the public glare, if the States really require them to fight terrorism. The Centre says, the States are the originators of these Bills, so it is better if I get these Bills from them.

SC directive on non-registration of FIRs

The following is a guest post from Vijay Nair, one of the Founder-Partners of KNM & Partners, Law Offices who has been in litigation practice for the last 14 years. He may be contacted at vijaynair.advocate [at] gmail [dot] com

-----------------------------------------------------------------------------------------

A crtical analysis of Order dated 14.07.2008 of the Supreme Court of India passed in Writ Petition (Criminal) 68 of 2008 titled “Lalita Kumari –versus- Government of Uttar Pradesh and others”.

In its Order dated 14.07.2008, the Supreme Court has, inter-alia, made the following directions:

..............In view of the above, we feel that it is high time to give directions to Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity. In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.....”

(emphasis supplied)
The Court has further directed that the aforesaid directions be placed on its website so as to educate the general public.

There is a school of thought which delves upon the aforesaid directions issued to say that the Supreme Court has now made it mandatory for every complaint presented to a Police Officer to be registered as a First Information Report, failing which it has been directed in the order that the concerned Police Officer shall be liable to be punished for Contempt of Court by the Magistrates and for Departmental Proceedings. This, according to them would increase instances of registration of frivolous First Information Reports by Police Officers afraid of prospective action against them by the Complainants.

In all my humility, I wish to differ from the aforesaid school of thought.
The Supreme Court has by passing the aforesaid direction, merely set down, in black and white, the existing procedure under Section 156 (3) of the Code of Criminal Procedure, 1973 and has not ventured beyond the existing law.

A plain reading of the direction would reveal that the Supreme Court has set down a step wise procedure: -

(a) if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions.

(b) The Magistrate may give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders.

(c) In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers; and

(d) punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them.

(e) The Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.”

From the above, it may be seen that the directions issued by the Supreme Court above operates in different spheres.

Supreme Court cannot usurp or upstage the power of a Magistrate under Section 156 (3) of the Code of Criminal Procedure, 1973. The Supreme Court and the High Courts have similar powers as under 156 (3) of the Code of Criminal Procedure, 1973 under Article 32 and Article 226 respectively.

The apparent dichotomy of the school of thought mentioned before is evident from the very fact as to how “contempt” is defined under the Contempt of Courts Act, 1971.

By not registering a First Information Report in the first instance, the Police Officer is neither in wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court, nor has the Police officer by publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act scandalized or tend to scandalize, or lower or tend to lower the authority of, any court, or prejudiced, or interfered or tend to interfere with the due course of any judicial proceeding , or Interfered or tend to interfere with, or obstruct or tend to obstruct, the administration of justice in any other manner.

Therefore, for initiating contempt, first there has to be a “Judicial Order”, which can come only after the Complainant gets an Order under Section 156 (3) of the Code of Criminal Procedure, 1973 from the concerned Magistrate directing the Police Officer to “register” a First Information Report and the Police Officer is in wilful disobedience of such Order/direction.

Even thereafter as also stated in the directions dated 14.07.2008, the Police Officer is entitled to show-cause and there can be no automatic provision for arrest or imprisonment.

By not registering a First Information Report in the first instance, the Police Officer is merely exercising the power available with him in Section 157 of the Code of Criminal Procedure, 1973.

In M.C. Abraham and Anr. v. State of Maharashtra and Ors.[2003 (2) SCC 649] the Supreme Court has held as under: -

“The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The Investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.”

The aforesaid view has been followed consistently by the Supreme Court, ending with Divine Retreat Centre –versus- State of Kerala [2008 (3) SCC 542]

As regards initiation of Departmental Enquiry is concerned, the same has to be initiated strictly in terms of the rules and law governing the employment of the concerned Police Officer.

In my honest opinion, the directions passed on 14.07.2008 would only affect, if at all, unscrupulous Police Officers who refuse to register genuine complaints and cannot in any manner affect those Police Officers who exercise sound discretion available to them under Section 157 and refuse to register a First Information Report on frivolous complaints.

Lawyers’ Boycott of Terrorist Cases in Uttar Pradesh: Whither Fair Trial?

We bring you a guest post by Talha Abdul Rahman, a recent graduate of Nalsar University of Law, Hyderabad. Talha will soon leave for the UK to pursue post graduate studies (BCL) at the University of Oxford as a Shell Centenary-Chevening Scholar.

Talha brought to our attention an Indian Express article, that narrated how lawyers in UP had collectively decided to boycott cases of those accused of terror strikes, and beat up lawyers who defied this diktat. And went on to note that: "This is something that must be brought to the notice to all lawyers and law students, discussing legal and ethical issues, and I think that there is no better platform than lawandotherthings."

We asked Talha to highlight some of the concerns raised by this UP incident in a guest post for us and he obliged. As Talha rightly contends, this incident has grave implications for the time hounoured principle that every accused is entitled to a "fair" trial and that they are "innocent unless proven guilty". And more importantly, it destroys the very fabric of "ethical" norms that more or less mandate lawyers to take up cudgels on behalf of every accused, unless "special" circumstances warrant otherwise.

It'll also be interesting to draw parallels between this case and the Jessica Lall murder case, where Ram Jethmalani came under opprobrium for deciding to defend Manu Sharma, an accused condemned by the media and by the public.


"Lawyers’ Boycott of Terrorist Cases in Uttar Pradesh"

Entrenched deeply in the roots of constitutionalism and rule of law, fair trial of an accused forms one of the basic judicial guarantees etched in law, both municipal and international. Though ‘fair trial’ is an overarching concept and is capable of being presented and protected in myriad forms, more often ‘fair trial’ is a sum total of everything that forms a constituent part of justice delivery system.

Procedural and substantive laws though an important but are just one aspect of fair trial. Actors such as lawyers and judges that ensure compliance with law, in letter and in spirit also form an important pillar of fair trial. Thus, an inexpendable aspect of fair trial is provision of a counsel who would stand by the accused, irrespective of counsel’s own opinion concerning the nature of offence. Fairness of a trial is vitiated the moment any constituent element of ‘fair trial’ is disrespected to the prejudice of accused, and clearly absence of counsel would vitiate a fair trial.

It is in this context that resolutions passed by some bar associations in Uttar Pradesh that collectively resolve that ‘no lawyer would defend any person accused of terrorist offences’ are criticized as inhibiting fair trial and adjudicating on the alleged guilt without trial by ExpressIndia and Tehelka. It has also been brought out that some local and outstations lawyers who have defied such unethical and illegal resolutions have had their offices ransacked and are warned of dire consequences.

Articles 21 and 22 of the Constitution of India provide for Right to Counsel of Choice. Principle 1 of the UN Basic Principles on Role of Lawyers states that “all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.” A logical corollary of these provisions is an obligation cast on lawyer by virtue of their profession to represent accused persons. Such right forms cornerstone of fair trial because it ensures that adequate and fair facilities are available for preparation of defense.

Thus, a fundamental legal guarantees of fair trial provided in law is Right to Counsel of Choice. However, bar associations’ resolutions to not defend persons accused of terrorist offences (and to prevent other lawyers from defending them) deny such persons not only this Right to Counsel of Choice, but denies them a counsel per se. Thus, there can be no dispute that the trial when measured in the impartial scales of justice would be vitiated as being unfair.

If trial at lower courts remains unfair, approval of death sentence as in Parliament Attack Case at appellate level may amount to a judicial murder.

Rule 11 of Section II of Part VI of Bar Council Rules framed under Section 49(1)(c) of the Advocates Act, provides that “An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief”. While only special circumstances may justify refusal to accept a brief, there is no precise definition of what constitutes ‘special circumstances’. However, given the noble nature of legal profession, such special circumstance would not include a situation where offence involved is a terrorist offence or even if it relates to crimes against humanity. Legal profession works on the premise that none should be condemned without sufficient evidence in a fair trial conducted after following due procedure, and an advocate is duty bound to ensure that this principle is complied with at all times.

Further, Rule 15 provides that “It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.”

The Preamble of UN Basic Principles on the Role of Lawyers reminds us that “…professional associations of lawyers have a vital role to play in upholding professional standards and ethics,… providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest….”.

Given these dictates of law, resolutions passed by bar associations in Uttar Pradesh are untenable in the eyes of law.

Mr. Jamal Khan, a Faizabad based lawyer who has courageously disobeyed the illegal whip issued by the Bar Association has submitted a complaint to the Bar Council of Uttar Pradesh. Action by the Bar Council under the provisions of Advocates Act is awaited.

Another, Lucknow based lawyer Mr. Mohammed Shoaib who has on a number of ocassions defended innocent youths picked up police on fake charges of terrorism has filed a writ petition in the Lucknow Bench of Allahabad High Court seeking directions from the High Court that members of such bar associations be prevented from obstructing court proceedings. The petition relies mainly on Right to Fair Trial and to practise any profession, or to carry on any occupation, trade or business.

Transfer of Cases

Chapter XXXI of the Code of Criminal Procedure empowers superior courts to transfer cases from one subordinate court to another whenever it is made to appear that an order is ‘expedient for the ends of justice’, which illustratively includes cases where fair or impartial inquiry or trial cannot be held.

Successful invocation of these provisions, though important for dispensation of justice, by itself is a blot on legal and justice delivery system because it brings out that because of systemic and systematic factor a criminal trial cannot be fairly conducted, and may allude to a situation of absolute arbitrariness and disregard for the law.

After the J&K Bar Association refused to defend persons accused of sex-scandal in 2006, their cases were transferred from Srinagar to Chandigarh. Even though the Supreme Court had slammed the J&K Bar Association for violating the Code of Conduct for lawyers, it does not seem to have had a demonstrative impact.

Custodial violence, randomness and procedural breaches in arrests, corruption in judiciary and utter disregard for ethics by lawyers raises some serious questions about respect for rule of law and justness in our criminal justice system. If the agents of justice and the legal system counter terrors with terror then as a civilization we are headed into the abyss of darkness.

In an attempt to counter terrorism, boundaries of law cannot be overstepped, and lawyers cannot become judges themselves in adjudicating on guilt of an accused that too before trial. Terror has to be countered, with justice.

Guest Blogger: Bikram Jeet Batra's review of a recent SC Judgment on Death Penalty

The judgment of the Supreme Court in the case of Swamy Shraddananda on 22nd July deserves much more attention than it has received. It is a strong statement against the death penalty. Although it does list a few reasons why the instant case was not considered ‘rarest of the rare’, it is clear that the reluctance to award the death penalty was due to much larger concerns: poor criminal justice administration and in particular the failure of the Supreme Court to be consistent in sentencing in capital cases. The judgment also provides a useful analysis of the landmark Bachan Singh and Machhi Singh judgments. (The judgment and an earlier post on this blog can be read here).

Besides the above, however, the judgment also sentences the accused to life imprisonment with a direction: “he shall not be released from prison till the rest of his life”. Although this is not the first instance where the Supreme Court has sentenced a person to life imprisonment without possibility of release, this is the first instance where the apex court claims to provide “good and sound legal basis” for this new form of punishment. Previous judgments awarding similar punishments had not even bothered to do so. One of my earlier articles on the subject can be read here.
Yet many questions remain with respect to the “good and sound legal basis” provided in terms of life imprisonment.

There is little doubt that when awarded by the court, life imprisonment means incarceration for the rest of the convict’s natural life. However there is equally no doubt that after the pronouncement of the sentence it is the executive which has the power and duty to make the decision on releasing the convict and furthering his reintegration into society. This is expressly laid down in the CrPC (Sections 432 – 435). In the first few decades after independence, it was widely believed that ‘lifers’ spent too little in time in prison as the authorities released them even after only 6 or 7 years. This was also noted by the Supreme Court in a number of cases. A direct result was the insertion of Section 433A in the CrPC in 1978 by which the legislature restrained the executive from exercising the power of release before 14 years of actual imprisonment were served. This was specifically for cases where life imprisonment was an alternative sentence to the death penalty or where the death sentence was commuted by the executive to life imprisonment.

It is generally believed that most persons sentenced to life are released after the 14 years are completed to the extent that that is common to correlate life imprisonment with a 14 year term. The present judgment also believes the same relying on information from two states and assuming that it would be the same in the remaining twenty odd. Perhaps the Court could have sought statistics from the Governments showing what percentage of lifers are released after the minimum incarceration of 14 years and how many lifers serve more than the minimum sentence. Such data is not available from the National Crime Records Bureau’s publications and would be essential to know before arriving at conclusions on the efficacy of the current terms of life imprisonment.

The present judgment goes into great detail into how lifers are released after earning remissions for good behaviour etc (provided in the various Prison Acts). They question how this is allowed given that remissions are as deduction of days from a sentence and no such deduction is possible from a life sentence which is by its very nature indeterminate. They find no merit in the process followed by Prisons whereby a life sentence is deemed to be 20 years for calculation of remissions. The judgment is correct in this respect and in fact this has also been previously noted in many judgments (also referred by the Hon’ble judges) which have expressly laid down that a lifer cannot claim release from his life imprisonment despite earning remissions unless the executive remits the whole remaining sentence.

The Hon’ble judges however take a huge jump when they move from the above valid conclusion to the assertion that the executive therefore cannot prematurely release a lifer. This conclusion is not supported by the judgments cited and certainly not by the provisions of the CrPC. While convicts cannot be released solely on the basis of their earned ‘ordinary’ remissions, section 432 specifically refers to the executive power of ‘whole’ remissions and commutations. This means at any time after the minimum sentence period of 14 years, the executive has the power to remit the whole of the remaining sentence of the accused. This provision has not even been discussed in the instant judgment which only discusses the ordinary remissions permitted by the Prison/Jail manuals and awarded by the Prisons Department.

This omission is quite surprising since the bench itself refers extensively to the process that takes place in Bihar and Karnataka when a lifer it to be released. This process involves reports on the prisoner prepared by the Prisons Department. These are then put forward before a State Remissions Board which examines the case and the State Government takes a decision after considering the recommendation of the Board. Without actually referring to any illustrations, cases or data that show the failure of this system, the Supreme Court takes ‘judicial notice’ that “remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of the early release of a particular convict on the society.” Even if the court is correct in its assessment – a matter as serious as this deserves more data and study than mere resort to ‘judicial notice’.

This sole ‘fact’ is then the basis for the Court to conclude: “the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.”

Besides the obvious penology issues involved, such a step has no procedural basis. It is not clear how the Court can take away statutory remission powers of the executive without first striking down Section 432 of the CrPC. In the absence of such a step, the Court’s direction restricting the executive from exercising its powers of remission would severely impinge on executive powers and be arguably unconstitutional as it may be violative of the basic feature requirement of ‘separation of powers’.

That the Hon’ble judges take such an extreme step without rebutting the valid contentions of the defence and knowing well that a writ petition on the same legal point is pending before another bench of the Supreme Court is extremely surprising. No doubt the Court was concerned that the accused had already spent 14 years in custody and could be released shortly. However this could have been avoided by a strongly-worded suggestion to the executive to not release the particular convict. The attempt to legislate a new punishment solely under the control of the judiciary is a clear illustration of judicial over-reach. The argument that this brazen foray into executive power was for a ‘good’ cause (keeping society safe and severely restricting the death penalty to the ‘rarest of the rare’) cannot replace the serious constitutional and penological damage caused by this and other previous similar judgments.
(Bikram Jeet Batra is a lawyer and researcher. He can be reached at bjbatra@gmail.com)

Article 143 as a safety valve

While discussing the ongoing turmoil in Jammu and Kashmir, Rajeev Dhavan has advanced a specious suggestion to defuse it. According to him, the Government should approach the Supreme Court for an advisory opinion on this question: "Is it consistent with Indian secularism for the state to make land grants to religious endowments for religious purposes? If so, in what circumstances, in what manner and for what purposes and to what extent?"

Dhavan says: "The SC's advisory jurisdiction has quelled many disputes including Berubari (1965), the UP crisis (1965) and the Babri Masjid dispute (1994). It is a safety valve".

Dhavan admits that the transferred land is secular land of no religious significance, and that it was wrongly and surreptitiously transferred. The policy of providing land grants is ill-conceived, as it will have implications if this is available to all religious endowments elsewhere, he says.

One is tempted to agree with much of what Dhavan says about the non-merits of land transfer to the Amarnath Board in the first place which triggered the controversy. But having triggered it, should the Executive now wash its hands of, and ask the Judiciary to sort out the mess which it has created? It may be recalled that even in the Ayodhya reference case, the Supreme Court refused to answer the question referred to it by the President whether a Hindu temple existed at the disputed site. The question was returned respectfully unanswered. The executive may buy time, by making a Presidential reference under Article 143; but like the Ayodhya dispute, it will remain unresolved.

The Kalam years

The Kalam Effect: My Years with the President by P.M.Nair, Harper Collins in collaboration with India Today Group,New Delhi, 2008.

P.M.Nair was Secretary to the former President,A.P.J.Abdul Kalam. In this absorbing book on his tenure, what interested me most were references to Kalam's flaws and foibles. Nair says Kalam lacked punctuality, and had the weakness of being swayed by criticism in the media.

Some interesting nuggets of information like these enliven this book: He included his own views in the customary joint address to Parliament, prepared by the Govt. every year; tried to redress genuine complaints, even if trivial (a girl drew his attention through email to a non-functioning see-saw in a public park, which got attended in no time, with Nair calling up the Collector concerned); vacillated on his conduct after the Supreme Court judgment on Bihar dissolution and Buta Singh. He wanted to resign, but Nair dissuaded him from doing so. Kalam felt he could have waited rather than sign the dissolution at midnight in Moscow. But Nair gently reminded him about his own standing instruction that no proposal coming to Rashtrapati Bhavan should be delayed, but dealt with alacrity.

Kalam's moment of vacillation again returned when Parliament resubmitted the Office of Profit Bill to him for assent, after reconsidering it. Kalam signed 18 days after receiving it, a delay which Nair says he has not been able to stomach. Nair admits that Kalam erred here.

The slim volume, however, is completely inadequate to consider the Kalam years in office in totality. Did Kalam vacillate when Vajpayee sought to prematurely dissolve the Lok Sabha and opt for early elections? Although reports suggested it, Nair's book is silent on that. The book has a foreword by Fali S.Nariman who describes Kalam as not a politician, but politically savvy; seemingly naive -child-like - yet paradoxically astute.

The Speaker has spoken

The Lok Sabha Speaker, Somnath Chatterjee has at last spoken through a press release explaining his anguish and also giving an account of the happenings.

He said:

"In view of the controversies that are now being raised based on a Party's contention that while as Speaker, a Member of Parliament should continue to be under the direction and control of the Party, a convention should start now that during his/her tenure as Speaker, a Member should temporarily resign from the membership of the Party and not face a situation which compromises the position of the Speaker vis-a-vis his or her Party."

Is he thus admitting that the situation today has compromised his position as Speaker? Why did he not use the option given by Paragraph 5 of Tenth Schedule in 2004?

Some questions which remain unanswered by him:

1. What about the convention of Speaker belonging to the ruling party/coalition/or supporting party? Is he not violating that convention? Mere unanimous election by all parties does not make any difference to the situation. A Speaker, elected after a contest, is also supposed to act impartially. Contest is envisaged in the election of the Speaker, so absence of it –because there are no other contenders - cannot be cited as a reason for not following a binding convention.

2. Selective reference to his June 4, 2004 speech: Why did he omit this part of his speech in today's press release?
"As a Leftist, as one belonging to the Left Party, friends on my left may be rest assured that I have a natural leaning towards the left."