Showing posts with label Contempt of Court. Show all posts
Showing posts with label Contempt of Court. Show all posts
Tuesday, August 11, 2009
Declaration of Compatibility
(Former) Chief Justice J.S. Verma’s opinion in the Indian Express today welcomes a proposal previously made by F.S. Nariman in the Indian Express regarding voluntary declaration of judges’ assets. M.C. Setalvad had once said that the Indian constitution has a “common law background and British origin”, and an ‘unwritten’ rule that judges must declare their assets certainly has the potential to crystallize into a constitutional convention, and such traditions are not unknown to Indian constitutionalism. The concern that adverse inferences will be drawn by persons who read judges’ balance sheets, especially in the light of the fact that many senior counsel appointed as judges have significant wealth before appointment is not entirely justified. First, this position erroneously (and paternalistically) believes that information should be withheld because if people are given information, they won’t know how to use it: like saying ban a certain drug because consumers will not be able to read and understand for themselves the side effects incident to the use of the drug. This argument goes against the essence of free speech. Second, the contempt power of a constitutional court judge would be sufficient to ensure that such adverse comments are not lightly made (although I have cursorily highlighted elsewhere that even Indian contempt powers require reform). However, I also believe that retired judges must declare their assets, at least for some period of time after retirement, in order to make this stance meaningful.
Friday, May 1, 2009
Contempt case against Gujarat Chief Minister
The Gujarat Chief Minister, Narendra Modi, has another hurdle to face (in terms of ethics and propriety), before and if at all his party gets the mandate to project him as the next-to-next PM-in-waiting. The contempt petititon filed against him by Prashant Bhushan is to be heard by the Supreme Court next week. In this news analysis in Business Line, I answer the critics who call the Supreme Court's directive to SIT to probe the allegations against Modi ill-timed, and I also quote Prashant Bhushan. Meanwhile, we wish the Supreme Court's attempt to extend fast track justice to the carnage victims all success.
Friday, April 3, 2009
Beards, Burqas and Bias: Contemptuous Statement?
Venkatesan's interesting post on the Salim case (dealing with the extent to which minority institutions can lay down rules that conflict with the religious beliefs of a student) drew some interesting comments. I want to offer a slightly different perspective (legal) and also to reflect on Justice Katju's unfortunate statement that equates all bearded Muslims with the Taliban!
Most newspapers report that Justice Katju, who, when confronted with Salim’s argument that the constitution guaranteed him the right to practice his faith by keeping his beard is said to have stated: “We don’t want to have Taliban’s in the country. Tomorrow a girl student may come and say that she wants to wear a burqa. Can we allow it?”
I spoke to two counsels who appeared for Salim who confirmed that these statements were indeed made in court. Thereafter, I wrote a short note on Justice Katju's offensive remarks, calling for sharp censure from the Chief Justice. More importantly, I opined that notwithstanding the merits of the case, Justice Katju's callous and insensitive comments about a minority community renders him unfit to be an impartial judge in a case involving the religious rights of that very community. Therefore, the case must be reheard before another bench and it must be considered afresh whether or not Salim's SLP can be admitted.
I sent this short note of mine to a leading newspaper a few days back and they were meant to carry it the very next day. Unfortunately, they expressed reservations at the last minute, citing their fear about potential contempt issues.
I was taken aback: Does every critique of a judge amount to contempt? And besides, if our media shirks away from carrying any critique of a judge, no matter how offensive his remarks, whither our core democratic and free speech values enshrined in the Constitution? And whither the interests of a minority community, whose sentiments are so liberally trampled upon by a judge, meant to uphold constitutional values?
Isn't it fair to demand that a judge who equates every Muslim with a beard with a member of the Taliban is censured? And to argue that such a judge has breached the secular fabric of our Constitution in very deep ways. And that he is not fit to hear a case involving a minority community about whom he has made these gravely offensive remarks?
I am extremely saddened at the attitude of the newspaper in this regard, but do hope that better sense prevails. I have asked them to indicate which portions of the note they've construed as contemptuous, with the hope that such portions could be worked around. In the meantime, if any of our readers know of any courageous papers that may be willing to publish such a piece, please let me know.
Now coming to legal analysis bit, I beg to differ with Venkatesan's views for the following reasons:
1. Most of the decisions delineating the scope of Article 30 would appear to suggest that Article 30 is not an absolute right. Rather, the state has some powers to step in, if the minority institution in question is mal-administered. And this limited power to regulate would also encompass the admission process, particularly when the institution in question has received state aid (TMA Pai case). The power to regulate would also appear to reduce (somewhat) when the minority institution in question has not received any state funds. In Salim's case, the convent school in question has not received any state funds.
2. It is highly improbable that a court would find that a uniform rule that required all students to have a clean shaven countenance amounts to evidence of "maladministration". An unequal application of such a rule might have demonstrated bias and therefore maladministration. But there is nothing on the facts to indicate any such unequal treatment. The petition filed before the Supreme Court speaks about the fact that Sikhs are permitted to keep their beard, hinting at the fact that the school might have made an exception for Sikhs in this regard. However, I spoke with counsel appearing in this case who confirmed that to the best of his knowlede, no Sikh or other student had ever received preferential treatment under the school rules. In other words, the school was likely to ask even Sikh students to erase facial hair.
3. Saleem argues that his right to freedom of religion under Article 25 has been violated. However, Article 25 itself begins by stating that it is subject to other provisions. In other words, Article 30 would trump Article 25 in this context.
One might even draw some support from Article 28(3) that stipulates that any unaided institution can impart religious instruction without the consent of the student or his/her guardian. If a Muslim student can be forced to kneel down and pray at a church (belonging to a Christian convent), surely such a student can also be made to shave his beard, even when such shaving contravenes his religious beliefs. As the MP High Court rightly put it, the student does have an option if he/she is troubled by such a rule: leave the school!
Therefore the Supreme Court bench may have been right in denying admission to Salim's SLP. However, in view of Justice Katju's statements made in open court that equated very bearded Muslim with a Taliban, the possibility of bias against a community cannot be ruled out. And the Chief Justice must not only censure such remarks, but take immediate steps to have this case reheard before anther bench. For justice must not only be done, but also be seen to be done!
Most newspapers report that Justice Katju, who, when confronted with Salim’s argument that the constitution guaranteed him the right to practice his faith by keeping his beard is said to have stated: “We don’t want to have Taliban’s in the country. Tomorrow a girl student may come and say that she wants to wear a burqa. Can we allow it?”
I spoke to two counsels who appeared for Salim who confirmed that these statements were indeed made in court. Thereafter, I wrote a short note on Justice Katju's offensive remarks, calling for sharp censure from the Chief Justice. More importantly, I opined that notwithstanding the merits of the case, Justice Katju's callous and insensitive comments about a minority community renders him unfit to be an impartial judge in a case involving the religious rights of that very community. Therefore, the case must be reheard before another bench and it must be considered afresh whether or not Salim's SLP can be admitted.
I sent this short note of mine to a leading newspaper a few days back and they were meant to carry it the very next day. Unfortunately, they expressed reservations at the last minute, citing their fear about potential contempt issues.
I was taken aback: Does every critique of a judge amount to contempt? And besides, if our media shirks away from carrying any critique of a judge, no matter how offensive his remarks, whither our core democratic and free speech values enshrined in the Constitution? And whither the interests of a minority community, whose sentiments are so liberally trampled upon by a judge, meant to uphold constitutional values?
Isn't it fair to demand that a judge who equates every Muslim with a beard with a member of the Taliban is censured? And to argue that such a judge has breached the secular fabric of our Constitution in very deep ways. And that he is not fit to hear a case involving a minority community about whom he has made these gravely offensive remarks?
I am extremely saddened at the attitude of the newspaper in this regard, but do hope that better sense prevails. I have asked them to indicate which portions of the note they've construed as contemptuous, with the hope that such portions could be worked around. In the meantime, if any of our readers know of any courageous papers that may be willing to publish such a piece, please let me know.
Now coming to legal analysis bit, I beg to differ with Venkatesan's views for the following reasons:
1. Most of the decisions delineating the scope of Article 30 would appear to suggest that Article 30 is not an absolute right. Rather, the state has some powers to step in, if the minority institution in question is mal-administered. And this limited power to regulate would also encompass the admission process, particularly when the institution in question has received state aid (TMA Pai case). The power to regulate would also appear to reduce (somewhat) when the minority institution in question has not received any state funds. In Salim's case, the convent school in question has not received any state funds.
2. It is highly improbable that a court would find that a uniform rule that required all students to have a clean shaven countenance amounts to evidence of "maladministration". An unequal application of such a rule might have demonstrated bias and therefore maladministration. But there is nothing on the facts to indicate any such unequal treatment. The petition filed before the Supreme Court speaks about the fact that Sikhs are permitted to keep their beard, hinting at the fact that the school might have made an exception for Sikhs in this regard. However, I spoke with counsel appearing in this case who confirmed that to the best of his knowlede, no Sikh or other student had ever received preferential treatment under the school rules. In other words, the school was likely to ask even Sikh students to erase facial hair.
3. Saleem argues that his right to freedom of religion under Article 25 has been violated. However, Article 25 itself begins by stating that it is subject to other provisions. In other words, Article 30 would trump Article 25 in this context.
One might even draw some support from Article 28(3) that stipulates that any unaided institution can impart religious instruction without the consent of the student or his/her guardian. If a Muslim student can be forced to kneel down and pray at a church (belonging to a Christian convent), surely such a student can also be made to shave his beard, even when such shaving contravenes his religious beliefs. As the MP High Court rightly put it, the student does have an option if he/she is troubled by such a rule: leave the school!
Therefore the Supreme Court bench may have been right in denying admission to Salim's SLP. However, in view of Justice Katju's statements made in open court that equated very bearded Muslim with a Taliban, the possibility of bias against a community cannot be ruled out. And the Chief Justice must not only censure such remarks, but take immediate steps to have this case reheard before anther bench. For justice must not only be done, but also be seen to be done!
Thursday, February 19, 2009
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.
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.
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