Blogging, Defamation and SLAPP cases

The recent refusal of the Supreme Court to come to the aid of D.Ajith, facing harassment from Shiv Sena which has filed a criminal complaint against him alleging criminal intimidation and outraging religious feelings, has stirred the blogger community. (See Bloggers can be nailed for views). The case comes close on the heels of the recent amendment of the I.T.Act, even though the FIR against Ajith was registered at Thane Police Station in August 2008, prior to the amendment.

According to the recent amendment of I.T.Act, as explained in this Manoj Mitta's story, an intermediary or a host on the internet is not criminally liable for the comments posted by others, if the intermediary allowed the alleged comment to be expressed unintentionally or failed to remove it from the site, after it is pointed out.

Ajith was the host of the community site which he created on Orcut against Shiv Sena, and the members of the community were free to express their views. Ajith argued that his was a community site, and the contents were meant only for members. The Supreme Court did not get into the merits of his contentions, before rejecting his petition praying quashing of the FIR against him. The High Court had granted him anticipatory bail. Bloggers united against the SC's refusal to come to Ajith's rescue.

In this post, Lawrence Liang is unhappy with the Chief Justice for declining relief to Ajith on the understanding that Shiv Sena alleged defamation against Ajith. The Sena did not allege criminal defamation, but alleged criminal intimidation and outraging religious feelings. One doesn't know whether Liang's conclusions will be different if he knew that the complaint pertained to S.506 and 295A of IPC. Still, Liang's explanation of the law on defamation, and his comparison of the CJI's view to that of Anatole France’s will be read with interest. His conclusion, in any case, is relevant:

"So rather than seeing this as an issue of the privilege of bloggers v. newspapers, it might make sense to locate the history of criminal defamation within the larger context of free speech as it affects different kinds of practitioners. And it might make sense for bloggers to also get a little organized in their responses to censorship of bloggers, because this is indeed one of those cases where an attack on one will eventually be an attack on all."

Srikrishna Inquiry and Developments in the Madras High Court

As I wrote earlier, the Chennai developments are a great cause for concern. If there is one silver lining in all the distressing news of the last few weeks, it is that Justice B.N. Srikrishna, a member of our blogging community, heads the inquiry committee constituted by the Chief Justice of India. Justice Srikrishna is known for his fearless commitment to the truth, and our best wishes are with him as he embarks on his difficult mission.

At our invitation, Ananth Padmanabhan, an advocate in the Madras High Court, has sent us this first-hand account of developments there. Like him, we await Justice Srikrishna's findings and hope that normalcy is restored in Tamil Nadu's courts.

GUEST POST by ANANTH PADMANABHAN

Most of you would be aware of the indefinite boycott by the Madras High Court Advocates Association to protest against the police atrocities committed within the Madras High Court campus on the 19th of February, 2009. I would like to give a quick sense of what had transpired on that day, and some of the background events culminating in these acts of mindless violence.

The First Boycott

From the end of January, 2009, lawyers of the Madras High Court had been on a boycott to protest against human rights violations against Tamils in Sri Lanka. This being an issue closely linked with Tamil pride, the atmosphere was charged and rife with emotions. In this melee entered Mr. Subramanian Swamy with his public interest zeal to be heard in an unconnected litigation to do with the Chidambaram temple. So far so good. It was unfortunate that he had to be present in court on a day when the boycott was at its peak. Then entered the lawyers into the court room of Misra J. and Chandru J. with rotten egg missiles. Mr. Swamy was pelted, and the infuriated judges recommended contempt action to the Acting Chief Justice.

The Ill-Fated Day

On 19th February, Court Hall 1 was jam packed as everyone was curious to see the fate of the suo motu contempt action. The Hon’ble Actg. Chief Justice was pleased to post the matter before a Full Bench of five judges on the 11th of March, 2009. Response was sought from the State of Tamil Nadu on this incident.

It is sometime just before the commencement of lunch that the powder keg was set on fire. The facts are still in doubt and it is for the Srikrishna Commission, now appointed by the Supreme Court, to put an end to these doubts. Based on newspaper reports and general gossip, all I can say is that the police wanted to arrest 15 lawyers whose names were linked with the Subramanian Swamy episode. Some other lawyers had in the meantime barged into the police station demanding an FIR to be lodged against Mr. Swamy for certain casteist references made by him. One thing led to the other, and soon, all we see is images on NDTV and CNN-IBN of police breaking up cars and lawyers hurling stones for self-protection. I can safely say that the police went berserk and beat up every single person seen in a white shirt or sari or generally perceived as being associated with the courts. To put it in a line, it was direct confrontation between the lawyers and law-enforcers. There is proof of extensive damage to vehicles and court property. Unfortunately, some of the judges were also caught in the cross fire. While the media has been focusing on the beatings taken by a couple of High Court judges, one can't overlook the fact that some of the judges in the small causes courts, city civil courts and family courts, housed in the same court complex, were brutally assaulted.

The Road Ahead

The Madras High Court even today bears close semblance to a war zone. The Supreme Court in the meantime has taken charge, with a couple of PILs being filed. As already mentioned, the Srikrishna Commission is due to submit its report in two weeks. The Tamil Nadu Government has promised to look into the monetary losses suffered by lawyers and do the needful. All I'm doing is to stare at the Madras High Court calendar hanging in front of me and count the number of working days we have had this year. It is less than 15.

Protesting against the judges, and how do we protest

The Campaign for Judicial Accountability organised a public protest on the judicial assets declaration case outside the Supreme Court yesterday. Among various independent activists, students and lawyers who lent support at today’s demonstration, notably present were Mr. Prashant Bhushan, Ms. Aruna Roy, Mr. Nikhil Dey, Ms. Arundhati Roy, Mr. Arvind Kejriwal, Mr. Gautam Navlakha, Dr. Anoop Saraya, Dr. Bhasker Rao, Mr. Indu Prakash Singh, Mr. Promod Chawla, Ms. Madhu Keeshwar and others. This public protest is yet another indicator that the judiciary is no longer sacrosanct in public eyes, and that it will be judged by the same harsh rules that we use to judge politicians. As this poster proclaims rather rhetorically, the days of judicial exceptionalism in our public imagination may be over.

Speaking of protests, it was a bit sad that our blog completely ignored the Pink Chaddis Campaign launched by the Consortium of Pubgoing, Loose and Forward Women; even as the blogosphere debated it passionately for weeks. Does democracy need to think of creative ways to protest (of course, without giving up the right to take to streets)? Or is it just the 'upper-middle-class' which doesn't want to take to streets trying to find a voice? Are these protests more effective, if only because they attract greater media attention? (Ram Sene withdrew its proposed agitation against Valentine's Day in Bangalore, but now plans to sue the campaign.) See also, Blank Noise campaign against sexual harrassment.

Slumdog millionaire: some critical perspectives

Well, we have had enough of rave reviews of the film. Here are two critical reviews which I found interesting. Sudip Mazumdar's Man Bites Slumdog is an absorbing autobiographical account of a former slum dweller-turned-successful journalist. He concludes as follows: Slumdog was a hit because it throbs with excitement, hope and positive energy. But remember an ugly fact: slums exist, in large part, because they're allowed to exist. Slumdogs aren't the only ones whose minds need to be opened up.

Amiya K Samanta in this article, says in spite of its technical excellence none will perhaps commend that the film has succeeded in reaching a certain level of artistic height. The story line is rather weak and often banal. Technical excellence and a somewhat unorthodox way of story telling have rescued the film from being a flop, the author says. The author's comparison of the film with Arvind Adiga's White Tiger is refreshing.

Update: Pritam helpfully sent this review by Arundhati Roy in Dawn newspaper.

Preventive Detention in Meghalaya

My previous post focused on the challenges that the Bush administration's preventive detention policies pose for the Obama administration. This is in part because individual lawyers who now occupy positions in government (including President Obama) have previously stated their principled objection to such laws.



A consistent objection raised by opponents of preventive detention laws is that they confer vast discretionary powers upon executive officials which, coupled with the pro-government bias throughout the system of administration that is devised to implement such laws, provide both temptation and incentives for their abuse by the officials who are empowered under such laws. These opponents cite empirical evidence which show that preventive detention laws have historically been abused to target groups of people who did not at all fall within the proper domain of such laws.



The latest (Feb 28) issue of Tehelka features an article that focuses on the record of the Meghalaya Preventive Detention Act (“MPDA”), and argues that the record of implementation of this preventive detention law in contemporary Meghalaya bears out the truth and forcefulness of this objection. Teresa Rehman relies on interviews with activists and lawyers in Meghalaya to argue that“a cross-section of people including activists, NGOs, pressure groups, political adversaries, juveniles and even pickpockets” have been detained under the MPDA." Rehman notes that pursuant to a 2005 amendment,

The Act allows the state government or District Magistrate to detain a person for up to three years “with a view to prevent him from acting in any manner prejudicial to the security of the state or to the maintenance of public order or of supplies and services essential to the community”. Records from the Registrar’s office at the Shillong Bench of the Gauhati High Court show that in 2008, 12 MPDA cases were disposed of while two are still pending. “The MPDA is vague as to who can be detained and does not distinguish between militants, activists and criminals. Everything depends on the whims and fancies of the government,” says DDG Dympep, an activist working with an NGO called the Meghalaya People’s Human Rights Council (MPHRC). There have been instances where the government has done away with formalities such as placing representations before review committees and has freed detainees due to public pressure. Those who have no one to speak up for them may languish in prison for three long years.

Detainees are usually immediately shifted to jails in remote districts such as Tura Jail in West Garo Hills district, William Nagar Jail in East Garo Hill district or the Jowai District Jail in the Jyantia hills. As a result, relatives find it difficult to meet them and detainees cannot easily consult lawyers. Sometimes, they are also sent to jails in neighbouring states. Moreover, jails in Meghalaya are in an appalling condition.

In 2001, the MPHRC conducted a survey to investigate the problems detainees face. This revealed that detainees, convicts and undertrials are kept together in three dilapidated wards. It also states that the condition of detainees and convicts is slightly better than that of undertrials, who do not get proper food and are - served rotten and discarded vegetables.

The entire piece is worth reading, and Tehelka is to be commended for maintaining its focus on such issues which are often neglected by mainstream media outfits.

Rajya Sabha debate on Judges' Salaries Bill

The debate in Rajya Sabha on the Bill to increase the Judges' salaries is, like the Lok Sabha debate earlier, equally noteworthy. Arun Jaitly, a former Law Minister, used the occasion to reflect on the process of Judges' appointments, and the procedure to investigate minor allegations against the Judges. Other members too shared their concern about related issues.

Among other speakers, Ram Jethmalani's speech was provocative: he deplored the fact that we are yet to build a monument for Justice H.R.Khanna, who had the courage to dissent in the A.D.M.Jabalpur case. D.Raja made a forceful plea for declaration of assets by Judges. The Law Minister reiterated the points which he made in the Lok Sabha. Overall, the debate in the Upper House reveals some Members' defence of judicial review or activism - which is interesting when we know that political class in general is opposed to judicial activism.

Panel discussion on 'Media freedom vs. religious fundamentalism'

The Foundation for Media Professionals, New Delhi, is organising a panel discussion on 'Is Religion beyond media scrutiny?' on March 2 from 11 a.m. to 1 p.m. (followed by lunch)at India International Centre (Auditorium), New Delhi. Speakers include Justice J.S.Verma, Chandan Mitra, Maulana Wahiduddin Khan, Madhu Kishwar, Nandita Das, and the arrested editors, B.V.Seetaram, Ravindra Kumar and Basavaraj Swami. The discussion is open to all, not just journalists.

A Resurgence of Bank Nationalisations

An offshoot of the global financial crisis has been the significant changes in economic policies in the developed world. The recent phenomenon relates to increasing calls from leading economists to nationalise troubled banks, particularly in the U.S. The concept of nationalisation was previously associated with the so-called ‘socialist’ economies, but is now becoming closer to reality even with proponents of the free market.

As Paul Krugman notes in his column in the New York Times, “Comrade Greenspan wants us to seize the economy’s commanding heights. O.K., not exactly. What Alan Greenspan, the former Federal Reserve chairman — and a staunch defender of free markets — actually said was, “It may be necessary to temporarily nationalize some banks in order to facilitate a swift and orderly restructuring.” I agree.”

Further, Matthew Richardson and Nouriel Roubini, professors at New York University's Stern School of Business note: “As free-market economists teaching at a business school in the heart of the world's financial capital, we feel downright blasphemous proposing an all-out government takeover of the banking system. But the U.S. financial system has reached such a dangerous tipping point that little choice remains.” Such comments arise in the context of concerns regarding the continued viability of leading U.S. banks such as Citibank and Bank of America.

Apart from the policy rhetoric, nationalisations tend to invoke certain fundamental questions. Often, there is a conflict of interest between shareholders of banks (who tend to take a ‘haircut’, as they say, in a nationalisation by having to give up their shares at low values) and that of other stakeholders (such as tax payers and the public who suffer if Governments have to continually backstop troubled banks without being taken over). There is also the question of whether governments are in a better position to run businesses such as banks as opposed to the private sector.

These issues are not novel in the Indian context with a substantial part of the Indian banking industry being populated by nationalised banks. Many of these issues have been the subject matter of intense debates in 1969 and 1980 when several Indian banks were nationalised. Some of these were even litigated all the way in the Supreme Court of India (R.C. Cooper v. Union of India, AIR 1970 SC 564). What is interesting in the current scenario is that the revival of this debate in the U.S. and other countries has thrown the spotlight on the Indian experience with reference to bank nationalisations – while the analysis in the Knowledge@Wharton suggests caution regarding adopting the Indian model of nationalisation, an interesting fact reported yesterday is that Citibank’s market capitalisation has become less than that of the State Bank of India (which is not only India’s largest bank but is also in the public sector). The key difference, however, is that the recent moves recommend nationalisation as a temporary measure, while in India it has become a permanent feature (although several nationalised banks do have public shareholders and their shares are listed and traded on stock exchanges).

Nithari verdict & the defence of alibi

The verdict in the Nithari case by the CBI Special Judge has led to a debate on whether the conviction and death penalty awarded to the accused, Moninder Singh Pandher was justified. Those who suggest that the trial court allowed itself to be influenced by public opinion, rather than pronounce judgment in accordance with law, point out that the CBI did not find Pandher guilty of conspiracy to murder in this first case whose trial has concluded. The CBI did not seek Pandher's conviction for murder because he was abroad, in Australia during the period of the serial murders at his home in Noida. A plea for justice in this case in accordance with the principle of establishing guilt beyond reasonable doubt has been advanced by some newspapers. (Read this, for example).

In this update in Frontline, I suggest that the Special Judge cannot be faulted on this ground because she rightly concluded, following some precedents set by the Supreme court in similar cases, that the plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. Therefore, the Special Judge’s dismissal of Pandher’s defence of alibi – however clinching it might be – carries conviction. The burden of proving the plea of alibi, under Section 11 of the Evidence Act, is on the accused. Therefore, the prosecution's excuse for not seeking the accused's conviction on this ground - when the circumstantial evidence against him is substantial - is misleading.

"Beyond Satyam: Analyzing Corporate Governance in India"

That was the theme for a panel discussion organized earlier this month in New York by the Jindal Global Law School. The panel consisted of internationally renowned academics and practitioners of corporate governance: Mr. Roel Campos, former SEC Commissioner, Professor John Coffee of Columbia Law School, Professor Michael Useem of the Wharton Business School and Professor Vikramaditya Khanna of Michigan Law School. I enjoyed the distinct privilege of moderating this panel. This was the first of a two-part series of panels put together by the Jindal School, with the second, a full-day conference to be held in New Delhi on February 23, 2009 that will include among other speakers, the Law Minister and Commerce Minister of India.

The goal of this panel was to consider reforms arising out of the Satyam episode as well as other occurrences globally. While a number of interesting thoughts emanated during the discussions, I will attempt to summarize some of the key outcomes in terms of recommendations below:

Taxonomy

It is important to lay out the taxonomy of corporate frauds and governance failures. In jurisdictions such as the US and UK, managers (such as the CEO, CFO and other senior executives) are compensated through stock options and equity and hence there is a strong incentive to inflate earnings. On the other hand, in countries such as India where there is concentrated shareholding, the critical actor is not the senior management but the controlling shareholder (a.k.a. the promoter). In such a scenario, where fraud is involved, it usually does not result in an inflation of earnings, but in related party transactions whereby assets of a company are siphoned out to other companies owned by the controlling shareholder. In that sense, and in drawing international parallels, although the media has called Satyam “India’s Enron”, this case is more akin to the Parmalat case which also involved affiliated transactions and misstatement of financials. The regulatory response in terms of reforms will have to take into account the differences in the systems where diffused shareholding is the norm (US and UK) and where concentrated shareholding is the norm (e.g. India).

Audit Process

There is clearly a case for reforms in the audit system.

- The appointment of auditors ought to be shifted from the purview of the controlling shareholders to the independent audit committee so that auditors do not owe any allegiance whatsoever to the controlling shareholders, and that the process of appointment and removal of auditors is effected in a manner that is truly independent of controlling shareholder influence.

- There is a case for the establishment of a body such as the Public Company Accounting Oversight Board (PCAOB) (that was established in the U.S. a few years ago), as that body would review the intensity and the integrity of audits by auditors on an annual basis.

- There is need for auditor rotation as it prevents creation of any affinity between auditors and controlling shareholders, and avoids “capture” of the audit process by insiders in companies.- Auditor liability is currently an unresolved question, and the affixation of liability for malfeasance needs to be clearly defined. In some countries, the public regulatory authorities (such as the securities regulator) could directly initiate action against auditors and the merits of such an approach require careful consideration.

- Other precautionary processes may help as well. This could include meetings between audit committee members and auditors without the presence of management.

Independent Directors

Independent directors tend to be in an unenviable position. Unless there are any red flags or warnings in a company’s operations, it is difficult to pinpoint board failure per se. For example, a board that receives false information, without any other warnings, is in a tough spot. Further, in controlling shareholder situations, the independent directors are often appointed by the controlling shareholders, and may hence owe a sense of responsibility to those shareholders. Having said that, the current norms on corporate governance in India do not go far enough to deal with independence of the board in controlling shareholder situations. Some of the possible reforms are as follows:

- Making nomination committees mandatory for Indian companies. Currently, there is no requirement to have nomination committees, although several companies have established such committees voluntarily. When independent directors are chosen by an independent nomination committee and without the influence of controlling shareholders, there is a sense that it would instill greater independence of such directors from the controlling shareholders

- Other processes relating to the functioning of independent directors may induce greater credibility in board decision making. These include:

- The requirements of lead independent directors

- Executive sessions among independent directors without the presence of management

- Appointment of advisors (such as lawyers and accountants) by independent directors to advise them on significant transactions involving a company. Such advice would be provided independent of the management or controlling shareholders.

- More fundamentally, there needs to be a re-evaluation of who appoints independent directors. Under the current system, they are appointed by the shareholder body as a whole, which is often considerably influenced by the controlling shareholder. What is required is a reform to consider other methods of appointing independent directors. For instance, they can be appointed by a majority of the minority shareholders, whereby the controlling shareholders do not have a say on the matter. Alternatively, there may be proportionate representation on boards of listed company where all shareholders have some level of say in appointment of directors and that the board is not dominated by controlling shareholder nominees. For example, in such a system, the minority shareholders obtain the right to elect such number of directors in proportion to the percentage holding of such minority shareholders. [Note: The system of proportional representation is already available under the Companies Act, in Section 265, but is only optional]

- Moving from a regulatory perspective into standards of conduct and ethics, perhaps it would be useful for industry bodies such as the Confederation of Indian Industry (CII) to draw up guidance for directors that would help independent directors clearly determine what is expected of them in the boardroom.

Investor Activism

There is greater need for activism on the part of the investors directly. Often, that is not possible because of the lack of coordination among various investors, referred to as the collective action problem. One method by which this has been resolved in the U.S. is through the existence of proxy consultants such as Institutional Shareholder Services or Risk Metrics who knit together coalitions of investors to actively play a role in significant decisions involving a company. Similarly, an active business press would also play an important role in enhancing governance practices.

These are some of the key recommendations emanating from the panel discussion. Clearly, there is recognition that none of these systems will be failsafe. However, the solution in these circumstances is that if a number of such systems are put in place, it would reduce the statistical likelihood of things turning sour from a governance standpoint.

Preventive Detention and the Obama Administration: the al-Marri case

The latest issue of the New Yorker contains an excellent article setting out the challenges that a case that will be heard by the U.S. Supreme Court in April 2009 poses for the Obama administration. As the author of the piece, Jane Mayer, describes it, the al-Marri case will require the Obama administration to "offer quick answers to a host of complicated questions about its approach to fighting terrorism." Her detailed piece explores several such issues and focuses in particular on the Obama administration's stance on preventive detention laws.

In India, the post-independence legal system has - somewhat paradoxically given the great abuse of such laws during the colonial era - endorsed and frequently justified the use of preventive detention, to the point where even civil libertarians seem to take their existence for granted. This was evident most recently in the post-Mumbai amendments to our anti-terror legal regime. This is, in Mayer's telling, in contrast with the historical experience of the U.S. where

many human-rights advocates and civil libertarians [...] regard indefinite detention as antithetical to the American legal system’s most basic tenets. Alberto Mora, a Republican lawyer who, as general counsel of the Navy, broke with the Bush Administration after concluding that some of its brutal counterterrorism policies were potential war crimes, warns, “We simply can’t have indefinite detention. Due process and fundamental fairness make that clear.”

Mayer notes that the Obama administration will have to decide this issue against the backdrop of President Obama's previous policy declarations during the campaign:

As a candidate, Obama promised a sharp break with the Bush Administration’s counter terrorism policies. In a written statement for the Boston Globe, Obama, who taught constitutional law in the nineteen-nineties, said, “I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.” (In fact, the Bush Administration went beyond this claim, arguing that Congress had explicitly granted the President this authority, in a bill passed after the attacks.) In the Globe, Obama went on, “The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.” In his Inaugural Address, Obama further underscored his differences with Bush in this area, saying, “As for our common defense, we reject as false the choice between our safety and our ideals.” A top legal adviser to Obama told me that the President also believes that legal residents in America, like Marri, are entitled to due process.

What makes the issue more intriguing is the fact that members of the Obama legal team have strong civil libertarian credentials built, in considerable part, on opposing the Bush administration's policies on the war on terror. (The article includes quotes by Neal Katyal and Marty Lederman on issues closely related to the case). Mayer's article contains detailed descriptions of the way detainees have been treated in the U.S. in the post-9/11 era, and her piece is a grim reminder of the kinds of measures that are now considered legally justifiable.

It is clear, therefore, that the al-Marri case will be a significant test case for the Obama administration's approach to anti-terrorism law and policy. The case will hopefully cause other governments - and courts - around the world to reassess both the legality and soundness of current anti-terrorism laws and policies.

Event in Kolkata: The US Death Penalty on the World's Stage

The National University of Juridical Sciences (NUJS), Kolkata will host Susan Karamanian from the George Washington University law school on the 26th of February (from 4 to 6 pm in Room 006 of Ambedkar Bhavan). She is the Associate Dean for International and Comparative Legal Studies.

Her talk titled "The US Death Penalty on the World's Stage" will examine the effect of legal developments outside of the United States on the US death penalty. Three developments frame her remarks:

1. The decisions of the International Court of Justice concerning US obligations under the Vienna Convention on Consular Relations;

2. The application of domestic and international standards in the extradition process when the accused faces a death eligible offense in the United States; and

3. The use of foreign law and international norms to interpret the US Constitution's prohibition on cruel and unusual punishment.

She will argue that these developments establish a marked contrast between the United States and nearly the rest of the civilized world on the death penalty. And, remarkably, as she will also establish, these developments have had a profound effect in the United States on critical issues such as the type of individuals eligible for the death penalty and the legal process they are afforded."

For those interested, here is her profile from the GW website:

"Dean Karamanian joined the Law School in 2000, after a 14-year career at Locke Lord Bissell & Liddell, LLP in Dallas, Texas. While in private practice, Dean Karamanian represented foreign and domestic clients in a variety of commercial disputes. She also maintained an active pro bono docket, in which she represented inmates on Texas death row in their post-conviction appeals.

Dean Karamanian was vice-president of the American Society of International Law from 1996 to 1998, and has served in many leadership capacities in the society. She is a member of the board of the Center for American and International Law, the Texas Appleseed Foundation, the Washington Foreign Law Society, and the Friends of the Law Library of Congress.

Dean Karamanian is a member of the Council on Foreign Relations and the American Council on Germany and a fellow of the American Bar Foundation and the Texas Bar Foundation."

All are welcome to attend her talk. The campus of NUJS is located in Salt Lake, Sector III, very close to the Beleghata bypass. Key landmarks are the National Institute of Fashion Technology [NIFT] and the College of Engineering and Leather Technology.

Unfortunately, the current NUJS website is not fully functional. But this wikipedia entry should give you some idea of this institution.

Korean lawyers publish judges' report cards

I came across an interesting story about lawyers in Korea publishing report cards evaluating performance of judges. You can read the report here. The report suggests that nearly 500 lawyers assessed the performance of judges across eight courts in Seoul on four criteria- attitude, integrity, fairness and knowledge. The results showed the top judge received 93 points, while the lowest received 45. Overall, Seoul's judges averaged 75 points. The report is not clear about the maximum points. A couple of interesting things to note- the report was only handed over to the Supreme Court of Korea and not made public. The lawyers hope that judges will also join the evaluation committee in the future.

I wonder if such a thing can happen in India. DAKSH, an organisation I work with is currently working on evaluating performance of elected representatives which is a difficult challenge. But I think performance assessment of judges is easier to carry out. I doubt however if our courts will permit such a thing to happen. More than likely they will invoke the sacred judicial independence argument. I understand that for the lower judiciary, some High Courts have instituted a points based evaluation system. However, I do not know if there is publicly available information on this.

Madness in Madras

Two weeks ago, I wrote on these pages about Vasantha Pai, a lawyer, legislator, and freedom fighter in Chennai. All that he stood for, practised, and preached, was repudiated in and outside the Madras High Court this week. As someone who enrolled as an advocate in Tamil Nadu, I hang my head in shame over the last two days' developments. What happened earlier on Thursday evening the High Court grounds is deeply disturbing. No amount of spin can condone it.

Almost 100 years older than the Supreme Court itself, the Madras High Court has been a grand symbol of our country's commitment to justice and the rule of law. As a school boy and law student, I walked through those magnificent Indo-Sarcenic hallways of the High Court that reek with history, grandeur, and tradition. Having spent formative years as a legal intern there, the court is an indelible part of my legal imagination. It has greatly influenced my pride in what I've always considered to be the learned and noble legal profession and, indeed, in my conception of what is just, what is fair, and what is proper. Yesterday's violent incidents shake those long-held beliefs to the core.

This is a Nadiad moment for the Indian legal profession. There will be time for time for introspection on what went wrong. There will be charges and counter-charges about who is to blame and who provoked whom and whether the police used unreasonable force. The inevitable inquiries have been ordered and they will run their course. But now is a time for immediate action. My sincere hope is that the Supreme Court will act on Friday with all deliberate speed to ensure that the Madras High Court's majesty is restored immediately. It must ensure that the all the guilty (whether the police or lawyers) are brought to book and made to account for their despicable actions.

I fear that without the Supreme Court's prompt intervention, or perhaps, inspite of it, I doubt the title "advocate" is likely to command the respect and regard that it did before in my state of Tamil Nadu and, I fear, in other parts of our country.

Parliament's debate on judiciary

I was lucky to watch the debate in Lok Sabha yesterday on the Bill (on the Lok Sabha channel) to increase the Judges' salaries. Though the attendance in the House was thin, the House did witness a lively debate before the passage of the Bill. (You can use the link here to read the full debate, by directly going to the time of the debate, that is, 14.06, when it started). The synopsis of the debate can be read here from p.8 to 24.

It is worth reading the debate because the media has completely ignored it. Ironically, when Bills are passed without debate, the media takes notice, but when debate does take place, the media has no space for it. However, there are other reasons why the debate is worth reading. A Judge in the Bombay High Court has refused to accept this month's salary because the increment was first sanctioned through an Ordinance. Interestingly, the Members as well as the Speaker were agitated about the urgency displayed by the Government in hiking the salaries. The Law Minister has replied that Ordinance was necessary because some of the Judges telephoned him to correct the disparity in pay immediately, and it was not fair to let the judiciary nurture a grievance. But was it too urgent to justify the ordinance route? The Bill passed yesterday could have given the raise in salaries of the Judges with retrospective effect.

The debate is hilarious for other reasons as well. The Law Minister said he was senior in age and experience to the present Chief Justice of India; therefore, Government was not bound to follow the CJI's letter to the Prime Minister seeking the removal of Justice Soumitra Sen of Calcutta High Court. The Minister was clearly indicating that he did not see any merit in the allegations against Sen, besides pointing out that securing requisite number of signatures of MPs to initiate the impeachment process would be impractical.

The Law Minister was at his provocative best on other issues: that he did not agree with the 1993 Advocates-on-Record judgment of the Supreme Court giving primacy to the Collegium, or even the SC's judgment in the Kesavananda Bharati case putting fetters on the Parliament's power to amend the Constitution. "Parliament is supreme, and the Supreme Court is accountable to the Constitution", he said, leaving one to wonder whether Parliament is not accountable to the Constitution. The issue of ordinance increasing the Judges' salaries, and the failure to enact the Bill to create the National Judicial Commission, despite all-party consensus on it, are two instances of this Government's extraordinary deference to the Judiciary.

Also read:

PRS Legislative Research's summary of the bill to raise the salaries of Judges.

The Bill as introduced in the Lok Sabha.

V.R.Krishna Iyer's article in The Hindu admonishing the Judiciary for seeking a salary-hike.

Supreme Court's Annual Report (07-08): A quick appraisal

At its website, the Supreme Court of India has published an annual report that seeks to cover developments from Oct 2007 to Sep 2008. In the foreword to the report, Chief Justice Balakrishnan suggests a reason for the issuance of such reports: “Free flow of information not only enlightens our people, it also enables them to form an informed opinion on the functioning and efficacy of our Public Institutions." This, indisputably, is a laudable objective, and is especially welcome given the recent efforts of the Supreme Court to evade the application of the Right to Information Act to its operational details, which have added to the impression that the Supreme Court is not amenable to the ethic of transparency that it sets for other public institutions within the country.

The third of its kind, the Report provides considerable statistical information about the caseload of the Court (both historically and during the period under review), and details about its operational procedures. Other sections provide details (often quite perfunctorily) about the Arrears Committee, the Registry of the Supreme Court, the National Legal Services Authority, and the National Judicial Academy. The Report contains several valuable little nuggets of information – such as the fact that its budgetary outlay for 2007-08 was 56.74 crores, whereas the amount for the current year, 08-09, is 57.04 crores - which make perusing its contents a worthwhile task.

With its glossy, high definition pictures of judges and parts of the Supreme Court building, and the very thin descriptive styles of some sections (particularly the one dealing with its history), the Report at times has the tone of a corporate public-relations document. Still, given the lack of information about this important institution historically, this is a step to be welcomed.

The feature of the Report which seeks to go beyond the thin descriptive elements of the previous two versions is an essay by Professor G. Mohan Gopal, the current Director of the National Judicial Academy, titled ‘The Supreme Court in the morning of the 21st century.’ In the 24 page essay, at pages 83-107 of the Report, Prof. Gopal attempts to provide a brief overview “of the work of the Supreme court in the first eight years of the new millennium.” Going beyond the one year period of the Report, the essay covers significant decisions and trends in the substantive jurisprudence of the Supreme Court since 2000, while also providing a quantitative overview. A vast number of cases are covered in the essay, and this is an important resource for identifying significant Supreme Court decisions handed down during the 2000-08 period. Even as it identifies seven "social challenges" and the Supreme Court's response to these challenges in its jurisprudence, the essay does not seek to analyse any of the decisions in sufficient depth, but perhaps that is to be expected in what is essentially a survey rather than an analytical essay.

The chief value of such reports is in the statistical information about the working of the Court that they provide. They can be extremely useful resources for scholars and observers of the Court who are able use this data to reveal important implications for the functioning of the Court (as posts on this blog by Nick Robinson amply demonstrate). Perhaps the court should consider including more scholarly analyses of its functioning (the note by Prof. Gopal is a good first step in this respect) in future versions. That apart, the availability of such information should make scholars focus more pointedly on the quantitative aspects of the functioning of the Supreme Court, leading eventually to a more empirically grounded account of the Court's work.

Some recent landmark/controversial decisions

1. Election Commission's guidelines for publication and dissemination of results of exit and opinion polls.

2. Supreme Court's judgment in Martin F.D'Souza Vs.Mohd.Ishfaq. Coram: Markandey Katju, R.M.Lodha, Date of Decision: February 17, 2009. Lays down guidelines to be followed in medical negligence cases, aims to prevent `harassment' of doctors.

3. Supreme Court's judgment in Bihari Lal Rada Vs. Anil Jain (TINU) & Ors. Coram:Lokeshwar Singh Panta, B.Sudershan Reddy. D.O.D: February 13, 2009. The judgment rules out the validity of 'general' category under reservation of seats in local bodies, and clears the contest of OBC candidates under non-reserved open category.

4. Delhi High Court's judgment in Ashok Rai @ AMIT Vs. State. The court reduced the sentence for rape imposed by the trial court on the appellant on account of his qualifying for the IAS. The National Commission for Women has decided to appeal against this judgment, as it has seemingly set a precedent that education and success in competitive examination could pave the way for reduced sentence in rape cases.

Cracks in the EC: The Tribune Debate

The Tribune has been carrying a series of articles on the cracks in the Election Commission. Today's article by P.P.Rao ( Cracks in Election Commission ) is the latest in the series and is also the best argument I have come across against the CEC's exercise of suo motu power to recommend the removal of Election Commissioner. The previous articles, all defending the CEC's suo motu power, can be read as follows:

K.N.Bhatt: Looking for a neutral umpire

H.Hingorani: CEC's recommendation

Ramaswami R.Iyer:There are some fallacies

Another instance of the pathology of caste [Guest Blog]

This is a post by Chandan Gowda, Associate Professor at the Centre for the Study of Social Exclusion at NLS, Bangalore. In this post, he explains some of the reasons behind the demands for internal reservations, which goes beyond the standard argument based on the creamy layer exclusion.

The psychological havoc of caste becomes obvious again in the case of the right- and left-hand (Yada-Bala) divisions among the Dalits of Karnataka. (The two sub-sections are numerically evenly poised.) Superficial discussions of caste identity in metropolitan circles presume Dalit to be an undifferentiated all-India category of “untouchable” castes. But, the Madigas (the left-hand Dalits) of Karnataka have long complained of being “primary untouchables.” The Holeyas (the right-hand Dalits) shun the Madigas in the various ways in which the non-Dalits shun them: inter-marriage, inter-dining, and social visitation do not usually happen between them. In addition to such social mal-experience, the activists of the left-hand Dalits have been pointing out that the right hand Dalits corner most of the benefits of the state’s affirmative action programmes. In fact, the efforts of the Madiga Meesalati Horata Samiti, a committee formed to fight for internal reservation for the left-hand Dalits within the existing state-sanctioned quotas in jobs and educational institutions, over the last decade led to the creation of the AJ Sadashiva Commission in 2004 for examining the “the issue of internal reservation to the left and right wings among the Scheduled Castes” (for more details about this commission, visit this site.)

The Dalit leadership, drawn mostly from the right-hand sections, was probably wise in not allowing the internal differences to break asunder their movement. But it might be a bit late now for them to sort out their internal inequalities and emerge united. It appears that the left-hand Dalits, who have been mobilizing themselves over the last decade, do not wish to close ranks with the right-hand Dalits. Clearly, these divisions are open to cynical manipulation by political parties. In fact, the BJP played with these divisions in the previous assembly election. The right-hand Dalits, who hold Ambedkar as their hero, seem less willing to align with the BJP while the left-hand Dalits, who consider Babu Jagjivan Ram their icon alongside Ambedkar, are not as hesitant about it.

In these times of deadly pursuits of power, money and prestige, a parable narrated by the great Kannada writer-activist, Siddalinagaih might seem merely wistful. Still, its political idealism is compelling.

“A Holeya and a Madiga were bonded (jeeta) workers with a village headman. In the mornings, both would be served the previous night’s leftovers at the cattle shed. Before eating his food, the Holeya blew into it and pretended to cool a hot dish. Seeing this, the Madiga picked up a quarrel with the headman: “Both of us are bonded workers. Why do you serve hot food only to him?” He wouldn’t believe the headman who insisted he served cold leftovers to them both. The Holeya continued to bluff the Madiga that he was being served hot, fresh food.” (My translation).

I am planning to do a short research assignment historicizing the left-right division within Dalits and assess its importance for contemporary politics. Although the terminology of left and right used to distinguish an inferior from a superior caste within Dalits is specific to Karnataka (it is invoked with reference to non-Dalit castes also in Tamilnadu), the inferiorized distinctions within Dalits are present in most parts of India.

RTI on Appointment of Judges: A partial success

RTI applicant, D.K.Mishra has achieved partial success with regard to his application seeking information concerning the appointment of Judges in the Guwahati High Court from the CPIO of the Ministry of Law and Justice, Government of India. The Full Bench of the Central Information Commission has given its decision, directing the authorities to reveal the information to the applicant relating to the views expressed by the state of Nagaland, and the recommendation made by the Supreme Court Collegium to the Government of India. The CIC has held that opinion given by Justice Brijesh Kumar and Justice H.K.Sema, both Judges of the SC at the relevant time who were once the Chief Justice and acting Chief Justice respectively of the Guwahati High Court, may be considered to be information provided by third party in confidence; as such, before disclosing the same, it would be necessary on the part of the CPIO to hear them or take their views. The text of the CIC's decision is here.

RTI activist, Subhash Chandra Agrawal, who has achieved similar success with regard to his application seeking information on the appointment of Justices Vijender Jain as the Chief Justice of Punjab and Haryana High Court, says that the Department will most likely appeal against the CIC decision in the D.K.Mishra case in the Delhi High Court and obtain a stay, as it had done so in his case earlier. The next hearing of the appeal against CIC decision in Agrawal's case will be heard in Delhi High Court on Feb.25. The likely appeal against the CIC decision in the Mishra case may be heard together that day.

Media Coverage, Mumbai Attacks and Censorship

The February issue of Halsbury’s Law monthly deals with the media coverage of the recent Mumbai attacks and more broadly with freedom of speech and censorship. As previous posts on this blog (here, here and here) and elsewhere have pointed out, there has been much criticism of the way the attacks were covered on television. M.G.Divan puts this in perspective when she notes that neither the media nor the government was prepared with a code of conduct for such situations. She says:

…[T]he problem that we faced during the Mumbai attacks was not just that the media was unprepared with a code of conduct for such situations, but more importantly, the government was as clueless about the consequences of live coverage and indiscreet information volunteered by its officers, including security personnel, all being aired while the siege was on. It appears that the government was unmindful of the necessity to issue basic directives to the media and it is highly unlikely that in a situation of such gravity, news channels would not have co-operated with reasonable requests in the interest of public security.

Culpability of the government in letting its personnel give freewheeling interviews to all and sundry and the role it played in this tragedy have not attracted the attention they deserve. Having seen how conflicting assertions by different people played its part in the recent Jamia encounter controversy, the same question needs to be asked about our investigating agencies as well.

She points out that the wide ambit of the Cable TV Act, 1995 renders any proposed amendment redundant and the government could order blackouts or censorship as per existing provisions. She argues that a code of conduct by the broadcasters association may not be of much help because (1) it only binds organizations that choose to be bound by it and (2) other forms of media such as blogs can easily circumvent such restrictions – we saw this happen during the recent Burmese uprising (before the junta shut down access to the internet). She prefers an independent media commission or tribunal set up by the government but manned by ‘independent’ media and law experts empowered to adjudicate media related complaints and order payment of damages.

Justice P.B.Sawant talks generally about the role of freedom of speech in a democracy, role of mass media and the press council and the need for responsible reporting. R. Hazari reviews case law pertaining to censorship of motion pictures on ground of obscenity and how the norms of acceptability have undergone a shift since the early decades. He concludes by pointing out that movies with social messages have been given wide latitude. It would have been more informative to read about more recent cases which he unfortunately does not discuss. Dr.S.Sivakumar reviews freedom of speech briefly in the UK and the US and provides examples of where the Supreme Court has upheld censorship on the ground of offensive or hate speech. He also talks of the dangers of commercialization, trials conducted by the press and the importance of protecting journalists. Jagdish Sagar provides an overview of the evolution of entertainment law with a discussion of recent and pending cases.