The Judges' assets controversy: A dialogue between a Judge and an activist

Justice K.Kannan of Punjab and Haryana High Court has responded to Mr.Prashant Bhushan, Convener of the Campaign for Judicial Accountability and Reform which has been spearheading the campaign for public declaration of assets by Judges. Here, we present Justice Kannan's response and Mr.Prashant Bhushan's reply to it, with due permission from Mr.Prashant Bhushan to publish the same in its entirety in view of its public interest. Justice Kannan's document is also available on his blog.

Justice K.Kannan's response

Dear Mr.Prashant Bhushan,

I do not know your official email id and hence posting this mail at this id under the belief that it will gain your attention. My chief justice gave me your letter addressed to each of the judges requiring the declaration of assets. I hold views against your demand and I have attached a document for my point of view. Having said this, I still have no qualms about letting you know about my riches or lack of it!

The document

Pompeia was perhaps a terribly wronged woman. In 62 BC she posted the festival of the Bona Dea ("good goddess"), to which no man was permitted to attend. However a young patrician named Publius Clodius Pulcher managed to gain admittance disguised as a woman, apparently for the purpose of seducing Pompeia. He was caught and prosecuted for sacrilege.

Caesar gave no evidence against Clodius at his trial, and he was acquitted. Nevertheless, Caesar divorced Pompeia, saying that "my wife ought not to be even under suspicion." It almost seems judges’ turn now. Judges are under increasing pressure to declare their assets publicly on a lofty allusion to Caesar’s wife having to be beyond suspicion. The CIC verdict directing the Supreme Court judges to declare their assets has found widespread approbation and the attempt of the Supreme Court to reverse the verdict by filing a writ petition before the Delhi High Court has drawn flak from many a quarter.

Former Supreme Court judges, two of them who were themselves previously Chief Justices of India (CJIs) joined issues and said that transparency and probity dictated that the assets be declared voluntarily by judges. The present CJI said that there was no law requiring judges to make a declaration of assets to the public. To this was the response by some jurists: of what use is Right to Information Act, if we must keep adding several subjects which could not be accessed by public? According to them, the already excepted areas in RTI Act under section 8, such as matters involving national sovereignty, parliamentary privileges, etc., ought not to be enlarged.

Nearer home Sri Lanka passed Declaration of Assets and Liability Law (Act 1 of 1975) requiring judges, among others to declare their assets at the time of their appointments. Many of the African countries have passed such legislation in the recent years to quell widespread allegations of corruption in high constitutional offices.

In India, although there is no such law, Supreme Court judges have been declaring their assets since 1997 to the CJI at the time of their appointment as an apex court judge and thereafter every year as per a resolution passed by the apex court on May 7, 1997. "The High Court judges may consider adopting a similar resolution in case it does not have a system of judges declaring their assets soon after the assumption of office and regularly updating the declaration made by them," said the CJI in his letter to High Court Chief Justices. The CJI wrote, "It is essential for an independent, strong and respected judiciary and indispensable for impartial administration of justice." He also called upon the High Court judges to adopt what is known as "restatement of values of judicial life" adopted by the apex court in another resolution earlier.

So what is the objection, if the statements made by judges to their respective Chief Justices are made public? Normally, it may not even sound civil to ask your own brother, sister or even a close friend about his or her financial details without offending his or her sensibilities and evoking a sense of embarrassment. Let us assume that that the attitude is never like a peeping Tom’s voyeuristic proclivities- in this case, however, not in a prurient form, to purvey what is in a judge’s wallet but rationalize it on the ground that the person who is entrusted with the task of judging other’s conduct is beyond reproach.

Ask this question, what do you do after getting the details? Should a judge be answering everyone how he has got the wealth that he has declared? Imagine a judge enquiring into allegations of disproportionate wealth case of a bureaucrat. In the course of the proceedings, what if the litigant asks the judge, ‘how did you obtain your wealth, before asking me to explain my riches?’ It may not be a daily occurrence, but consider the mischief that the right to demand the assets statement of a judge could entail. Again, judges are not in the same league as politicians.

It is precisely for this reason that the judge, who granted an order of stay of the CIC order, said that judges could not be treated like politicians and ordinary government servants. Politicians are elected by people; they have a right to know the financial antecedents. A corrupt politician may not be re-elected again, if the voter believes that the politician has been corrupt. Can anyone doubt the wisdom of the judgments of the Supreme Court in Union v Association for Democratic Reforms (2002) and PUCL v Union of India (2003), when they said that declaration of assets at the time of standing for election has become the necessity of the day because of statutory provisions of controlling widespread corrupt practices have become insufficient? Judges are not elected as are done in U.S.A. They cannot be removed by people.

What do you do with corrupt judges, do you ask? Without addressing the issues of the appointment and the removal procedures as they exist now, you cannot do anything. Shall we put the nominations for appointments of Supreme Court judges and of the High Court through discussions in the parliamentary select committees and of the respective State assemblies before they are taken on board, so that a full- fledged roving enquiry is made about the antecedents of a judge before he is appointed? A judge that is corrupt cannot be tried by his own brother judge or an ordinary magistrate, as any other public servant is tried, can he be? Judiciary ought to be institutions where normal litigations are fought, where a judge plays the role of an impartial arbiter. Can you parade a judge for dismissal from service before another judge?

Let us evolve mechanisms within the judiciary itself to regulate its conduct. If the existing mechanism is perceived as not being successful in preventing corruption in the judiciary, let us evolve better procedures for their recruitment and removal. That will give us answer to who shall access the records of assets of judges.

Mr.Prashant Bhushan's reply:

Dear Justice Kannan,

Thank you for taking the trouble of writing to me about your views on the declaration of assets. Your views are forthright and from the fact that you have sent your declaration of assets to me is clear evidence of the fact that your views are not coloured by a reluctance to declare your own assets.

But with respect, I beg to disagree with your views as set forth. In essence, what you say is that a judge having to answer uncomfortable questions about his wealth or its source or otherwise would compromise his independence. You go on to say that judges should not be accountable to the people or to any other authority or even to their brother judges. In maintaining this, you are indeed consistent. Consistent yes, but in my view the marginal gain in independence will be more than offset by the enormous increase in corruption and misconduct of judges due to the lack of accountability.

We have advocated for a long time that there needs to be set up a Constitutional National Judicial Complaints commission, which will have the power to take disciplinary action against judges. This should be constituted in the following manner: The Chairman appointed by a collegium of all judges of the Supreme Court. One member appointed by a collegium of all CJs of the High Courts. One member to be appointed by the Cabinet. One member to be appointed by a collegium of leaders of Opp of the Lok Sabha and Rajya Sabha. And one member to be appointed by a collegium of the Chairman NHRC, CVC, CEC, CAG etc.

All these members would enjoy security of tenure and would be independent of the government and the judiciary.

However this is a long dialogue, which we can engage in when we meet.
But I do appreciate your candidness and forthrightness.

With warm regards,
Prashant Bhushan

Karnataka HC Judge's bold, and refreshing article

Rarely, HC Judges take a public position, which is opposed to that of the Chief Justice of India and his brother Judges in the Supreme Court. Therefore, Justice D.V.Shylendra Kumar of Karnataka High Court's two-part article in New Indian Express on the question of Judges declaring their assets, and questioning the CJI's right to speak on behalf of the entire Judiciary in the country is sure to raise eyebrows. The author's observations are very persuasive: first, the CJI's views cannot be representative of the views of the other SC Judges or HC Judges on the matter. Second, in our scheme of things, the HCs are independent, and are not under the administrative control of the Supreme Court. He has also asserted his right to express his views freely on any matter without fear or favour.

The two-part article can be read here and here.
Justice Kumar is also reportedly exploring how to publicly declare his assets even in the absence of an agreed procedure. However, Justice Kumar's article is bound to raise issues of propriety because the Delhi High Court is still hearing the Supreme Court's appeal against the CIC decision on the assets case. Point No.8 in this Restatement of Values of Judicial Life is of particular relevance.

Union of India v. Ramesh Ram: Notes on oral arguments before the SC Constitution Bench

[Readers are requested to first read the previous posts on the subject, to familiarise themselves with the issues]

Solicitor-General: Both the Tribunal and the Madras High Court have erroneously assumed that the relaxed category is the reserved category. The Civil Service Rule 16[2] is compliant with Article 335. The Rule enables use of transparent criteria in reservations which will not impair efficiency in services. There are two sets of people in reserved category: those with higher marks and those who need relaxation of marks to get into services. If under Article 335, (read Proviso to Art.335) relaxation is implicit, UOI assumes that if you are under relaxed category, then you are not inconsistent with efficiency. People under relaxed category can also perform without affecting efficiency.

In Nagaraj, the Supreme Court has held that efficiency in Art.335 is a guided expression. In Indra Sawhney, the Court held that the nature of relaxation does not determine the purpose of Art.16(4). Madras High Court and Tribunal have held that the moment you are in general list, you are out of the reserved list. According to Nagaraj,(Paragraphs 104 and 106 cited) efficiency is a variable factor and it is for the State to determine it. The High Court did not analyse it with reference to Nagaraj or Article 335. Article 16(4) has many dimensions including Article 335. Rule 16(2) is not violative of Article 16(4) at all.

The matter remained part-heard, and the names of the counsel who have so far argued are available here.

Additional Materials: The Hindu story on August 20.

Appointing "Independent" High Court Judges

In a post on SpicyIP, I reviewed a big ticket compulsory licensing dispute involving the sound recording industry on the one hand, and radio stations on the other. I went on to reflect on the competence of the current Copyright Board that is adjudicating this highly complex dispute. And asked if the Chairman of the Copyright Board, Dr Raghbir Singh was sufficiently qualified to merit his post.



The Copyright Act requires that the post of Chairman be occupied by a person who is qualified to be a High Court judge. Preliminary investigation led me to Dr Singh's CV, which does not carry any prima facie evidence of him having been an advocate of the High Court for at least ten years.



As many of you know, Article 217 (2) of the Constitution requires that:



"A person shall not be qualified for appointment as a Judge of a High Court unless he is a a citizen of India and- (a) has for at least ten years held a judicial office in the territory of India; OR



(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;"



Dr Singh, a PhD in law has had a very distinguished legal career including the following appointments:



1. Indian Legal Service of the Government of India as Parliamentary Counsel/legislative draftsman (September, 1980 – March, 2000)



2. Joint Secretary & Legislative Counsel (21.08.1991 to 20.08.1996) and Additional Secretary (21.08.1991 to 31.12.1997) in the Indian Legal Service in the Legislative Department, Ministry of Law, Justice and Company Affairs, New Delhi.



3. Secretary , Legislative Department, Ministry of Law, Justice and Company Affairs, New Delhi (01.01.1998 – 31.03.2000). 4. Secretary, National Commission to Review, the Working of the Constitution, New Delhi (01.04.2000 to 30.04.2002).



Impressive though they may be, do the above appointments qualify as "judicial offices" within the meaning of the Constitution? No, says the Supreme Court of India in Sri Kumar Padma Prasad v Union of India : (1992) 2 SCC 428, an important case concerning the validity of appointment of a certain Mr Srivastava to the Gauhati High Court.



The court effectively ruled that any post that is effectively controlled by the Executive (such as the post of Legal Remembrancer-Cum-Secretary, Law & Judicial, held by Mr Srivastava) could never qualify as a "judicial office" within the meaning of Article 217. In pertinent part, the court also endorsed the ruling in Chandramohan that although our Constitution does not envisage a strict separation of powers doctrine, it clearly advocates an independent judiciary: in fact such independence forms part of the basic structure of the Constitution.



Meaning of "Judicial Office"



I reproduce some extracts from the court that may be of interest to our readers:



"We are of the view that holder of "judicial office" under Article 217(2)(a) means the person who exercises only judicial functions, determines causes inter-parts and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free form executive-control and is disciplined to uphold the dignity, integrity and independence of judiciary.



....It is clear that the expression "judicial office" under Article 217(2)(a) of the Constitution has to be interpreted in consonance with the scheme of Chapter V and VI of Part VI of the Constitution. We, therefore, hold that expression "judicial office" under Article 217(2)(a) of the Constitution means a "judicial office" which belongs to the judicial service as defined under Article 236(b) of the Constitution of India. In order to qualify for appointment as a Judge of a High Court under Article 217(2)(a) a person must hold a "judicial office" which must be a part of the judicial service of the State.

....It is for the first time in the post-independent era that this Court is seized of a situation where it has to perform the painful duty of determining the eligibility of a person who has been appointed a Judge of High Court by the President of India and who is awaiting to enter upon his office. We looked into the official record and permitted learned Counsel for the parties to examine the same. We are at a loss to understand as to how the bio-data of Srivastava escaped the scrutiny of the authorities during the process of consultation under Article 217(1) of the Constitution of India. A cursory look at the bio-data would have disclosed that Srivastava was not qualified for appointment as a Judge of the High Court on the admitted facts which have been on the official files all the time.



Needless to say that the independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution. These objectives enshrined under the Constitution of India cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility.



The independence of judiciary is part of the basic structure of the Constitution. The Directive Principles give a mandate that the State shall take steps to separate the judiciary from the executive which means that there shall be a separate judicial service free from the executive control. The Constitution scheme, therefore, only permit members of the judicial service as constituted in terms of Article 236(b) of the Constitution to be considered for the post of district judge and that of the High Court Judge."



Applying Padma Prasad to the Copyright Board Case

Coming back to the Copyright Board matter, it is clear that Dr Singh has never held a "judicial office" for the purpose of Article 217(2), as almost all of his appointments were under the control of the Executive. He does not therefore qualify to be a High Court judge and thereby, is not fit to sit as Chairman of the Copyright Board. Of course, this takes his current bio-data at face value and assumes that he has never been an advocate for ten years or more.



If the above holds true, the government ought to immediately review the situation and take steps to replace Dr Singh as Chairman. Else, these compulsory licensing proceedings, which are the first of their kind in India are susceptible to vitiation at a later stage. Clearly, more billing hours for the lawyers. But a sheer drag on the justice machinery in our country and a tremendous waste of resources for litigants who continue to operate in a climate of legal uncertainty.

Other Things and Constitution-Making

Fareed Zakaria's latest piece here captioned "If it's not a crisis, we can't fix it" provides an interesting backdrop to the problems associated with constitution-making. Since this blog lists 'other things' as part of its subject matter, I felt that this would be a good occasion to try and link 'other things' to 'law'. Zakaria speaks of how the American response to both the financial crisis of 2008 and to the post 9-11 terror threat stand in stark contrast to its attempt at healthcare reform. He suggests that perhaps the crisis is somehow conducive to prompt (and perhaps effective) decision-making. Constitutional thought also grapples with the question of how best to enact constitutions (or alternatively, how to legitimately interpret them).

Without getting into an inordinately detailed theoretical discussion, seeing as how some readers may not be intimately acquainted with constitutional dilemmas, I can state here that Ackerman's work deals with constitutional crises, which he terms the constitutional 'moment', although Elster points out that crises are not particularly the best occasions for quality drafting. The underlying principle is that the most effective and lasting constitutional solutions can be achieved during a period of crisis. A related question in constitutional theory is why constitutions are observed at all: does the crisis lend authority to constitutional text?

In India, the emergency and post-emergency era, in which courts undertook what S.P. Sathe termed 'self-legitimating' activism, could perhaps be said to have been one such crisis - which makes you wonder if judicial activism in India today derives its authority from the post emergency understanding of Indian constitutional law: not a unique idea, but an interesting thought for those that believe that good things too can eventually be achieved from the churning of an ocean (forgive the metaphor).

Introducing Aparna Chandra

I am delighted to introduce Aparna Chandra as a new contributor to the blog. Aparna graduated from the National Law School in 2006 and with a LLM from Yale Law School in 2007. She worked for a couple of years at the National Judicial Academy in Bhopal. Currently, she is a visiting faculty member at the National Law School, Bangalore, and is also working on her JSD at Yale Law School. Her areas of interest include human rights and civil liberties, gender and the law, and judicial process reform. A more extensive biography can be found on the NLS webpage here. She has written numerous articles on the Indian legal system, already made some wonderful comments on the Law and Other Things Blog, and we are very much looking forward to her contributions going forward.

Union of India v. Ramesh Ram: Brief notes on oral arguments in Supreme Court (August 18)

The case is about the constitutionality of permitting reserved category candidates selected under general (merit) list by virtue of their good performance to migrate to reserved category for the purpose of allocation of services. Those who are aggrieved by this rule include the reserved category candidates selected under the quota, who stand to lose the best service allocation because of the migration, and the general category candidates who lose out because the reserved category candidates were not adjusted in the reserved category at the time of ranking, because of their good performance in the examination.

The following are some extracts from oral arguments advanced by the Solicitor General, Gopal Subramanian:

This is a fight between reserved candidates with higher marks and the reserved candidates with lower marks. The UPSC Rule 16 (2) which favours migration of reserved category candidates from the merit list to the quota for the purpose of service allocation, also favours the meritorious within the general category. Migration is a right available to a reserved category candidate, who may choose to avail it.

Justice Raveendran: If migration is not allowed, reserved category candidates may choose to perform poorly in the competitive examination, so that they do not get selected under the general merit list.

GS: Migration aims to bestow the benefits of reservation, based on higher marks; therefore, it is commendable. It seeks to achieve a nexus between the candidates' performance and what is being offered to them. It is an incentive to the reserved category candidates to work hard and achieve quality. It assures the reserved category candidates that if they perform well, they won't lose the benefits of reservation at the time of service allocation.

Justice Kapadia: Why can't you give more marks within the general category to those reserved category candidates so that they need not migrate.

GS: We are dealing with substantive equality. We seek to achieve the object of reservation by rewarding those who succeeded in making it to the general list through sheer merit.

Amartya Sen's "The Idea of Justice"

Almost a year ago on this blog, in what was perhaps my first post, I wrote about a lecture given by Amartya Sen at Harvard Law School on “The Idea of Justice”. In his lecture, Professor Sen expounded upon arguments contained in a book on the subject that he was writing at the time. The book of the same name has now been published and Professor Sen has given many interviews, including to several Indian news channels describing the central argument of the book, which is to advocate a theory of comparative justice as opposed to what he calls transcendental justice. That is, justice should be preoccupied not so much with achieving a precise distinction between the just and the unjust for the creation of an ideally just society (like Rawls’ basic structure (in “A Theory of Justice”) derived from the principle of equal basic liberties, the principle of fair equality of opportunity and the difference principle), but on the actual realization of good social outcomes in society.



The best reviews of the book that I have read so far appeared in The Economist and in Outlook India earlier this month, the latter having been written by Dr. Pratap Mehta, President, Centre for Policy Research, New Delhi. Some excerpts from the review in the Economist are as follows:



“ . . . Mr Sen charges John Rawls, an American philosopher who died in 2002, with sending political thinkers up a tortuous blind alley. The Rawlsian project of trying to describe ideally just institutions is a distracting and ultimately fruitless way to think about social injustice, Mr Sen complains. Such a spirited attack against possibly the most influential English-speaking political philosopher of the past 100 years will alone excite attention.



The Idea of Justice” serves also as a commanding summation of Mr Sen’s own work on economic reasoning and on the elements and measurement of human well-being. It is often intricate but never worthy. Conceptual subtleties flank blunt accounts of famine’s causes or physical handicap’s economic effects. A conviction that economists and philosophers are in business to improve the world burns on almost every page.



Mr Sen writes with dry wit, a feel for history and a relaxed cosmopolitanism. He presumes that the values in play are of global, not purely Western, import. Earlier thinkers he cites on justice and toleration come less from fourth-century Athens or 17th-century England than from India, where he was born 75 years ago. Growing up in Bengal, he learned about poverty and equality directly, not from books.



Two themes predominate: economic rationality and social injustice. Mr Sen approaches them alike. He can, when he wants, theorise without oxygen at any height. But he believes that theory, to be of use, must keep its feet on the ground. Modern theorists in his view have drifted too far from the actual world.



Economists have tended to content themselves with a laughably simple picture of human motivation, rationality and well-being. People are not purely self-interested. They care for others and observe social norms. They do not always reason “instrumentally”, seeking least-cost means to given ends. They question the point of their aims and the worth of their wants. Well-being, finally, has no single measure and is not inscrutable to others. Its elements are many and do not boil down to “utility” or some cash-value equivalent.”

. . . .

Rawls held that social justice depended on having just institutions, whereas Mr Sen thinks that good social outcomes are what matter. Strictly both could be right. The practical brunt of Mr Sen’s criticism, however, is that just institutions do not ensure social justice. You can, in addition, recognise social injustices without knowing how a perfectly fair society would arrange or justify itself. Rawlsianism, though laudable in spirit, is too theoretical, and has distracted political philosophers from corrigible ills in the actual world.”





As Dr. Mehta writes, "[i]ndeed, the book is not so much about an idea of justice as it is about the vast range of legitimate considerations that have to be taken into account in a theory of justice. And finally what institutional arrangements might best embody a move towards greater justice will crucially depend on circumstances; perfect institutional structures are no guide to how we might proceed.





[A] large part of the book is devoted to defending ideas that Sen has so influentially articulated: the place of reason in ethical reasoning, the idea of positional objectivity, the defence of liberty and, most famously, the capabilities approach. The point of departure for the capabilities approach is the idea that “justice cannot be indifferent to the lives people can actually lead”. Individual advantage is judged by a person’s “capability to do things he or she has reason to value”. In a sense, this argument is situated between liberalism and Marxism. On the one hand, the traditional liberal conception focuses on freedom and the means to living such as resources or basic primary goods; the Marxist conception, articulated most recently by G.A. Cohen, focuses on whether we have actually achieved the fullest possibilities of self-realisation. The liberal emphasis on liberty is salutary; but its emphasis on resources confuses ends and means. Resources are merely means; it is the actual capabilities of people that matter. But on the other hand, a focus on actual achievement rather than capability would set the bar too high, and ignores the fact that there can be legitimate gaps between capability and achievement."



The full reviews of the book in the Economist and Outlook India can be accessed here and here.





Without having read the book, it is not possible to comment on the ideas expressed therein. Therefore, I will confine myself to a few preliminary thoughts based on information about the book contained in the reviews that I have read and the lecture that I attended last year.



1. The argument in favour of a comparative idea of justice is not entirely new having been made in some form or other by people like David Hume. Given that Hume and Adam Smith were friends and contemporaries, it is not surprising that as the Economist notes, “[Sen’s] hero is Adam Smith: not the Smith of free-market legend, but the father of political economy who grasped the force of moral constraint and the value of sociability. To encapsulate the shift in attitude that Mr Sen has sought to bring about, ethics and economics are to be seen as Smith saw them: not two subjects, but one.” I suppose the true merit of the book (with respect to its central thesis, other merits notwithstanding) is not the newness of its central argument but its masterly attempt to bring this argument back within the debating arena. Since its publication in the 70s, “A Theory of Justice” is regarded as the text on political philosophy. In the introductory class on political thought taught at Harvard, students are informed that in terms of actual impact on intellectual thought, the three giants of political theory are Plato, Hobbes and Rawls. While this assessment may be contentious, it is undisputed that Rawls is widely regarded as the greatest political philosopher of the twentieth century, a label that Dr. Mehta endorses in his review. Though Rawls’s ideas have been critiqued extensively in the decades since “A Theory of Justice” first appeared, most theorists are preoccupied with identifying gaps in his theory and not challenging the entire edifice, the premise on which his theory is based.



2. Smith’s emphasis on seeing economics and ethics as one subject, not two is also significant for the argument against separation of social science disciplines in the academia, particularly in light of the status often given (wrongfully in my opinion) to Economics as a near science and its penetration into every social science discipline including that of law. Sen asks for economics to be seen as Smith saw it, as Political Economy. This recognition is important in a situation where today for instance, out of the hundreds of courses on offer at the Harvard Government and Economics Departments, there are only a few courses on political economy, with only one being offered in the Economics Department.





3. Sen draws upon ancient Indian philosophy in support of his argument even as he relies upon Western writers like Smith. Given that not just the western world but also political science students from India read almost nothing about ancient Indian political philosophy as part of their general degree course, it is wonderful that a person of the stature and credibility of Amartya Sen has taken upon himself the task of bringing the arguments contained in these works to the attention of a vast audience.





Of course questions arise even from such a preliminary understanding of the book, some of which have arisen from his earlier works as well. What are the implications of Sen’s argument for policy makers? If everything has to be seen on a relative scale and so many different things have to be considered, then all decisions will be marked by ad hocism and subject to the ills of decision making without guiding principles. As Dr. Mehta notes,





"The last section of the book argues rightly that the authority of any rankings will in part depend upon the practices of democratic justification. While there can be no quarrel with this position, it is a bit of a theoretical let-down in that it leaves a large question hanging: In some theories, such as those of Habermas, to whom Sen is sympathetic, the idea of justice is assimilated into that democracy. Justice is what democracy does; the trick is to specify what democracy means. That does not appear to be Sen’s position. What then is the relationship of ideas of justice to democratic deliberation. While there can be no quarrel with this position, it is a bit of a theoretical let-down in that it leaves a large question hanging: In some theories, such as those of Habermas, to whom Sen is sympathetic, the idea of justice is assimilated into that democracy. Justice is what democracy does; the trick is to specify what democracy means. That does not appear to be Sen’s position. What then is the relationship of ideas of justice to democratic deliberation?





The concepts used in the book have also been critiqued on various grounds. As the Economist notes,



“Virtually every claim Mr Sen makes will be objected to by someone. Right-wingers who follow Friedrich Hayek or James Buchanan will treat “social justice” and “social choice” as nonsense. Mr Sen wants to humanise canons of “maximising” rationality; behavioural economists, much in fashion, aim to ditch them altogether. Rawlsian liberals will rally to the defence of their hero. Nobody, however, can reasonably complain any longer that they do not see how the parts of Mr Sen’s grand enterprise fit together.”



The Economist further notes, "Mr Sen ends, suitably, with democracy. It can take many institutional forms, he says. But none succeeds without open debate about values and principles.”



However, ideas of democracy and open debate are not new and I hope that Sen’s book has more concrete solutions to offer. As Dr. Mehta points out, " [ ] if the terrain of engagement is the actual state of affairs, then arguably what one needs is a messy engagement with the political economy of power rather than elaborate distinctions in the domain of justice. Here one wishes [Sen] had followed his great hero in the book, the much-caricatured Adam Smith, a bit more. Smith had the extraordinary capacity to combine immense moral sympathy, a belief in the possibility of progress, with a deep scepticism about the sources of progress. He had wariness about concentrations of power, one that Sen fleetingly acknowledges; but he also had a deep sense of the paradoxical and messy ways through which progress takes place.

The paradox of this book is that while Sen is a severe critic of utopianism in thinking about the ends of justice; he ends up sounding too straight-laced about the means to achieve justice. In the end, his profound humanism obscures the trickier problem for justice: how to straighten the crooked timber of humanity."

PRS Annual Competition--Analysis 2009

PRS Legislative Research invites submissions for Analysis 2009, a national-level legislative analysis competition organised by PRS every year since 2007. The competition is open to all law students and current post-graduate students from any discipline. Participants are expected to produce a succinct three-page analysis of one of two bills, likely to come up for debate in Parliament with Members of Parliament as the target audience. Judges in previous years have included former Supreme Court judges Y.K. Sabharwal and Ruma Pal, eminent journalist and currently visiting faculty at the Centre for Policy Research Mr. B.G. Verghese, former governor Ved Marwah and former members of Parliament Dr. R. Senthil and Professor M. Ramdass. The first prize is Rs. 20,000, second prize: Rs. 15,000 and third prize: Rs. 10,000. The deadline for submission is August 30, 2009.

This is one of many initiatives that PRS has taken in the short time since it came into being to inculcate awareness of the legislative process amongst the citizenry. The rules of the competition and details for application can be accessed here.

OCCASIONAL DIGEST

1. Pratiksha Baxi in this EPW article critiques both Mayawati and Rita Bahuguna in the context of the recent controversy over the latter's hate speech against the CM. Important for the attention she draws to the SC/ST Atrocities (Prevention) Rules, and how they are observed in breach. This part may be worth following up, if not the Mayawati-Rita spat.

2. My interview (along with my colleague, T.K.Rajalakshmi) with Supreme Court advocate,and Member, Law Commission, Kirti Singh, over the need for a law to fight honour killings. Kirti Singh is working on a draft law to fight this social menace on behalf of All India Democratic Women's Organisation.

What I found unconvincing while preparing for the interview was the Home Minister P.Chidambaram's statement during the discussion on the calling attention motion in Rajya Sabha. The discussion here (p.8-36)and here reveals that the Home Minister sees justification for the enactment of Sati Act, but doesn't find similar rationale for a law against honour killing. Surely, if sati can be considered as disguised suicide, and therefore treated differently from suicide, so can honour killing be considered differently from ordinary murder. The entire cover story on honour killing in Frontline is an important resource to start a campaign of sorts for a new law.

Here,readers can access some bookmarks on Sati. The Sati (Prevention) Act, 1987 was a result of the nation-wide outrage against the Sati committed by Roop Kanwar in Rajasthan. I wonder why there has not been similar outrage even though there have been a number of honour killings across the country. Is it because law has ceased to be an instrument to bring about social reform as this story suggests?

3. My story on the Delhi High Court's judgment on the BMW case raises an important question on the applicability of IPC Section 304 Part II. What the HC has held in paragraph 260 appears to be debatable. The HC said in its judgment the accused might have known that his action was likely to cause death, but if he had hoped that it would not, then S.304 Part II was not applicable. Justice Kailash Gambhir's judgment may be accessed at the Delhi High Court's website. (Date of judgment: July 20, 2009. Sanjiv Nanda v. State of Delhi). The other aspect of the case, sting journalism, appears to me, is unsettled. The FMP debate on August 20, I hope, will throw further light on the matter.

4. Jayanthi Natarajan, in this article in Asian Age, on the recent Supreme Court judgment (discussed earlier) on kicking of daughter-in-law by her mother-in-law not constituting cruelty under S.498A IPC. She has rightly admitted that the provision has been misused by litigants in some cases, but in this case, has she missed the factual matrix, while criticising the Court?

5. Inder Malhotra's fascinating account of August 15, 1947.

TODAY IN SUPREME COURT

Supreme Court's five-Judge Constitution Bench comprising the CJI, Justices S.H.Kapadia, Raveendran, Sathasivam and Sudarshan Reddy will begin hearing from today a series of eight cases, beginning with SLP [C] 13571 - Union of India v. Ramesh Ram. This case has been discussed on our blog earlier.

Panel Discussion on Sting Journalism

There will be a panel discussion this Thursday, August 20, on sting operations or undercover investigations conducted by the media. This issue has acquired urgency because of the charge of abetment levelled by the Delhi Police against Aniruddha Bahal and Suhasini Raj of Cobrapost in the 2005 cash-for-questions sting that led to the historic expulsion of 11 MPs.

The Foundation for Media Professionals has put together a panel reflecting the diversity of views on this relatively recent but high-impact form of journalism. The panelists include Rajdeep Sardesai, Tarun Tejpal, Jaya Jaitly, Justice R S Sodhi, Prashant Bhushan and Arvind Kejriwal.

Topic: Undercover reporters: scam busters or abettors?

Venue: India International Centre's Auditorium, New Delhi

Date and time: Thursday, August 20, from 10.30 am to 1 pm followed by lunch

The debate is open to everyone concerned with this sensitive issue.

Time article on gay rights activism in Asia

The latest issue of Time has an article with the arresting title, 'Why Asia's gays are starting to win acceptance.' Not surprisingly, the Naz Foundation case features prominently in the piece, though its principal focus is upon the far more audacious pace of change that has occurred in Nepal over recent years. The piece provides profiles of activists in Nepal, India, China, and Japan, and also tracks recent developments in these jurisdictions. Tarunabh had earlier posted about the Nepal Supreme Court's historic Dec 2007 ruling here, and the Time article profiles the man who was the lead petitioner in - and driving force behind - the case. The article also profiles some of the people who have been prominent in the Naz Foundation case, and is an interesting and stimulating read overall.

I was struck by one particular passage in the article:

The rising visibility of gay people in the region is just one of many social changes that have been accelerated by travel, urbanization, education, democratization and, most of all, the explosion of information across every imaginable medium. This isn't simply Westernization — the old argument that homosexuality is yet another crass cultural import from the West has been all but discarded. But the Asian social institutions and beliefs that often stood in the way of tolerance — religious conservatism, intense emphasis on marriage and having children, cultural taboos against openly discussing sexuality — are weakening. In some parts of Asia, space is opening up for homosexuals in society. "The debate about sexuality is in the realm of the constitution, of democracy, equality and human rights," says Gautam Bhan, a gay activist in New Delhi. "The terrain of the debate has shifted." (Emphasis added)

Much as I would like to agree with the argument in the highlighted portion in the above passage, I believe that based upon the statements of high judicial figures in India (both sitting and retired) who may have a crucial say on the eventual outcome of the Delhi High Court ruling in the Naz case, this may be an overly optimistic analysis. The ‘Westernization’ attack has been leveled not only by the far right in India, but by more centrist figures who have otherwise devoted careers to upholding values and ideas that some within the far right would still consider to be ‘Western’ imports, including the ideas of the ‘rule of law’, ‘judicial independence,’ ‘separation of powers,’ and even basic notions of ‘constitutionalism.’

The challenge for constitutionalists then, is to find ways to counter such notions by arguing, as the Delhi High Court did, that the ruling in Naz can be justified upon values that are solidly entrenched within our constitutional document.