Justice Kurup Responds

Now, Justice Kurup gives his version of who actually is responsible for the Kerala Smoking judgment. This episode strikes me as bizarre and quite contrary to our judiciary's rather collegial behaviour.

Biogas, Animal Husbandry or a Secular Republic

Chief Justice Lahoti approved of the animal husbandry policy of the Gujarat State government and overruled the 1958 Mohd Qureishi ruling on laws prohibiting 'cow slaughter'. The court's extensive discussion of policy issues relating to biogas production and scientific animal husbandry and it's relative neglect of the wider religious and political agendas involved is alarming. Staying away from a legal analysis for the moment, what struck me most about this opinion was the normative 'framing' of the debate. Quentin Skinner's educates us on the ways in which a careful analysis of normative language reveals significant insights into the ideological battlegrounds of our social world. We must take lessons from Skinner and George Lakoff and strive to reformulate the normative debates around 'meat-eating'. If not we may well live to see the SC hold forth on 'chicken slaughter' while conveniently forgetting to rein in 'rice plant hackers'!

Justice Lakshman and the Smoking Judgment

This letter seems like an odd clarification for a Supreme Court judge to offer a newspaper. Justice Lakshmanan, who I generally consider to be a reasonable and very pragmatic judge, appears to have taken a Hindu article on Justice Kurup's achievements quite personally. This letter protests against a Hindu report that attributes the Kerala High Court's smoking ban to another judge, Justice Kurup. Lakshmanan believes that the credit must go to both of them jointly! But, then, perhaps, I, too, would be miffed if credit due to me went to someone else. Is that really what happened?

Marital Rape held a criminal offence in Mexico: Implications for India and some observations on using foreign and international law

Earlier today, The New York Times reported that a court in Mexico has held that marital rape is a crime within Mexico:

The Supreme Court of Mexico ruled Wednesday that rape within marriage is a crime, bringing Mexico's laws into line with much of the world and removing one of the many obstacles women here face in reporting rape. The ruling ended a legal battle waged since 1994, when a majority of the justices agreed that because the purpose of marriage was procreation, forced sexual relations by a spouse was not rape but "an undue exercise of conjugal rights."

The unanimous ruling on Wednesday said the earlier decision had denied women the right to exercise their sexual freedom and was based on an interpretation of rights relating to property, not human beings. The court stated clearly that forced sexual relations within marriage - whether the force is physical or psychological - was a crime.

"What's behind this is a modern conception of the relationship between a man and a woman in marriage," said José de Jesús Gudiño Pelayo, a justice of the Supreme Court. "It's a relationship of equality in which a woman does not lose her sexual freedom when she marries." That the decision came with so little debate suggested that attitudes in this macho country are changing, albeit slowly. But many women's advocates agreed that while the ruling was a landmark step, polls on social attitudes have shown that deep-rooted opinions that women should be subservient still hold sway over much of society.

They warned that entrenched attitudes still made it very difficult for women to report rape.

As the article notes, there are now very few countries in the world which do not criminalise marital rape. Sadly, India is one of these few countries (the article identifies Malaysia as another such nation). Let us examine the position in India. Section 376 of the Indian Penal Code, which defines the offence of rape provides an exception for marital rape, as follows:

Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Activists for women’s rights have long campaigned to have this exception repealed, and the issue was recently referred to the Law Commission of India. (For details about the campaigns to repeal the exception, see this recent article by two law students which provides a useful overview of the issue, and also details some countries and international conventions that have outlawed the practice).

In its 172nd Report (dated March 2000), the Law Commission of India tackled the issue of marital rape while addressing other proposals for reforming the provisions relating to rape. The treatment accorded appears to be extremely superficial as is evident from the Law Commission’s summary dismissal of the proposed reform:

"Representatives of Sakshi [the women’s organisation which litigated the issue of reforming Indian penal laws relating to offences against women] wanted us to recommend the deletion of the exception, with which we are unable to agree. Their reasoning runs thus: where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognised by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault where the wife happens to be above 15/16 years. We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship." (Emphasis added)

It would be interesting to consider how, in a hypothetical challenge to the constitutionality of the marital rape exception to Section 376, the Supreme Court would react to the citation of the Mexican court’s judgement outlawing marital rape.

On the face of it, the Indian Supreme Court, which has a long history of engaging with foreign and international law, should have no trouble in engaging with the Mexican judgment, and following through on its rationale. As a recent study demonstrates, the Supreme Court of India has referred to foreign law in a large number of cases. Therefore, the Court should have no difficulty in accepting the reasoning of the Mexican Supreme Court as the judgment was rendered in the context of a society which has many factors in common with India. In addition, many other nations have taken the decision to criminalise marital rape, and this position is also mandated by applicable international conventions and treaties.

However, the practice of relying upon foreign law is not as uncomplicated as an initial consideration of the issue would suggest. Rajeev Dhavan has noted that the Supreme Court’s reliance on ‘western jurisprudence’ during the first 25 years of its existence led to several problems (Rajeev Dhavan, The Supreme Court of India: NM Tripathi, 1977 at pages 454-55 and 461). According to Dhavan, the early Indian Supreme Court judges “approached very many issues before them from the alien standards of western jurisprudence”. Dhavan avers that this was especially so in cases relating to property and land reforms, which ultimately led to the failure of successive laws and governmental actions to achieve meaningful land reforms. Dhavan further asserts that it was because of such a slavish attitude towards ‘western jurisprudence’ that Indian judges adopted a passive attitude towards preventive detention laws, as well as personal law matters.

There are some problems with this hypothesis. Surely the fact that the results dictated by ‘western jurisprudence’ were aligned with the interests of the classes from which Supreme Court judges were drawn, may have had something to do with the phenomenon? Seen from this perspective, Indian judges were not, as Dhavan suggests, naïve, overworked people acting under the influence of “imitative cosmopolitan habits”, but were actually strategic and instrumental actors working towards ends that benefited them and their class.

The current argument against the application of foreign and international law in India would be along the lines argued by the Law Commission of India: that criminalizing marital rape would amount to “excessive interference with the marital relationship.” This argument smacks of cultural relativism, and amounts to saying that Indian men have a ‘right’ to expect sexual intercourse on demand, regardless of the consent of their spouses. As various studies highlight, the issue is not simply of whether their spouses consent: there are documented cases where men have inflicted grave forms of sexual violence upon their wives and have availed of this provision to get away. Defenders of the exception would have to make a convincing case in light of documented studies which indicate that the extent of marital violence and rape in India are at extremely high levels. Faced with such a situation, the continuing condoning of the practice by the law would be difficult to justify.

I am not advancing a simplistic, universalist position. I believe there are strong reasons, grounded in our historical, constitutional and social context, which call for the criminalisation of marital rape (some of these reasons have been canvassed by Sakshi before the Law Commission). I believe that the growing international consensus in this respect is an additional factor which must be taken into account. Incidentally, this is the same reasoning that was adopted by a majority of the U.S. Supreme Court in striking down the juvenile death penalty in the U.S. (See Roper v. Simmons, decided in March 2005). Speaking for the majority, Justice Kennedy concluded by reasoning through domestic law that the juvenile death penalty was "cruel and unusual punishment" under the Eighth Amendment to the U.S. Constitution. Thereafter, he took note of the "stark reality" that the U.S. was the only country in the world that continued to give official sanction to the juvenile death penalty. (The Nov 2005 issue of the Harvard Law Review has an interesting debate over the use of foreign and international law in this case - see the 'Comment' section, as well as pp 84-90 of Richard Posner's 'Foreword').

Rather than a court judgment on the issue, the best solution remains that the Indian Parliament recognise the need for reform, and enact an amendment to the Indian Penal Code to make marital rape a criminal offence.

(Update, Nov 20, 2005: The latest issue of Frontline carries a column describing details of a new Bill which seeks to make comprehensive changes to the existing laws relating to sexual assault on women and children. It proposes amendments to the Indian Penal Code, theIndian Evidence Act and the Code of Criminal Procedure. There is also a proposal in respect of the marital rape provision. The Bill has apparently been endorsed by the National Commission for Women and has also gained the informal approval of the Union Home Minister. It should be interesting to see how this bill fares both in Parliament and in discussions about its proposals in public fora.)

Rajeev Dhavan on the Constitutional Crisis in Nepal and on Constitutonalism more generally

Today’s Telegraph carries a column by Rajeev Dhavan on the aforementioned topic. I am convinced that Dhavan is one of the most under-appreciated legal scholars in India. Most people recognize him from his regular (though somewhat less so in the recent past) newspaper columns and from his comments to the press about new judgments issued by the Supreme Court. Fewer people have a sense of the contributions he made to the scholarly study of the law in his earlier incarnation as an academic. I for one regret that his move to the Supreme Court bar resulted in depriving Indian legal scholarship of one of its most meticulous and astute scholars (though Dhavan continues to engage in scholarly works, it is clear that his projects in recent years have been of limited magnitude).

In recent weeks, I have had occasion to revisit his academic writings, and they are awe-inspiring. His 1977 work, 'The Supreme Court of India: A Socio-legal Critique of its Juristic Techniques (NM Tripathi: 1977)', remains, two decades later, one of the most definitive studies of the Indian Supreme Court, its judges, and the body of jurisprudence it has created. Based on his PhD dissertation submitted to the University of London, the book is one of the few academic works which tries to contextualize Indian judges, and is a rare example of socio-legal/law and society scholarship in Indian public law. Through the 1970s and the 1980s, Dhavan undertook many studies documenting various aspects of the working of the Indian judiciary, with a particular focus on its arrears and strategies developed to overcome systemic problems. He has also authored comprehensive studies of PIL litigation in India: its origins, foundational debates about the phenomenon between influential lawyers and judges, how it developed over time, etc (Sadly, some of these works are less accessible as they seem to have been published as monographs).

Dhavan has also closely followed the development of Indian legal research and scholarship over time. His masterly introduction to Marc Galanter’s ‘Law and Modern Society in India (OUP: 1989)’ provides a historical survey of works on Indian law dating from the colonial era till the late 1980s, and analyses how legal thought in India changed over different periods of time(The thirty-page endnotes section contains a comprehensive listing of the most significant scholarship on various aspects of Indian law). He comments acidly on the hold of the ‘black letter law’ tradition over Indian legal writing (as displayed in judgments and academic scholarship), and offers succinct, devestating summations of the attitudes of Indian judges, lawyers, politicians and law teachers towards the law. He also analyses the contributions of other Indian academics, as well as of those foreign scholars who have written on Indian law. His journal articles on the Indian Law Institute (with which he has been involved for a very long period of time) and the traffic of ideas from America to India provide important historical information as well as trenchant criticism of aspects which he feels have stunted the development of Indian legal research and scholarship. In this short post, I cannot do justice to the many articles on a variety of subjects that he has published in various journals, including his regular articles in the prestigious Journal of the Indian Law Institute. I hope this brief survey of Dhavan’s monumental contributions to Indian scholarly literature will inspire others to revisit his work.

Reverting to the article in today’s Telegraph, one finds some typical signs of Dhavan’s approach, where he analyses a specific contemporary issue by putting it into historical context and by locating it within a larger sphere of intellectual thought. Here is an extract from the article:

A lot of constitutions fail — either partly or wholly. In fact, in the last 60 years, very few constitutions have remained unscathed. But this does not mean that constitutionalism fails. There are three possible results. The first is that constitutional failure signifies a revolutionary change and creates a void to start afresh. This void theory was supported by Pakistan’s courts in Dosso’s case in 1958. The second approach is to recognize constitutional failure but to limit the executive power to exercise power consistent with necessity. This was the improved view of the Pakistani courts in Asma Jalani (1969) and other cases. There are also intermediate formulations from Ghana (1966) and Nigeria (1969).

But all these approaches create a “usurpers’ jurisprudence”. In the case of Rhodesia, the British Privy Council, pronouncing from a distance, called Ian Smith’s regime unconstitutional in 1969. But it could not enforce its orders anywhere — except in England. We must, therefore, turn to the third path of what I call “constitutional legality”. When a constitution fails, we must turn to the principles underlying the constitution to devise a system of constitutional governance. This is precisely what the amending power of the Nepal constitution underlines in Article 116 by referring to the spirit of the constitution.

In a talk to the Nepalese Bar Association on November 6, 2005, I compared a modern constitution with its multiple protections to the famous military formation of a chakravyuha in the Indian epic the Mahabharata, where one wall rises to the defence when the preceding one falls. So, in the Nepal crisis, the king has been trying to take over, threaten, manipulate, and overawe the other protecting walls of the constitution, including the corruption commission, the constitutional council, the human rights commission, the media, NGOs and so on. But the judiciary must stand up to the situation. To restore the constitution (a) a cabinet must advise the king, (b) all laws must conform to the bill of rights, (c) new laws must not be promulgated except when necessary, (d) elections must be announced (e) ordinances in excess of provisions must be limited or struck down, (f) a political dialogue with all, including the Maoists, must be sustained even in the face of American pressure that the political parties must not ally with Maoists, (g) the judiciary must not be compromised, (h) an independent NHRC must be reconstituted, (i) there can be no arbitrary detention and (j) the media and NGOs must be protected. The king must respect the principles underlying the constitution from which he claims to draw his power. All these form the principles of constitutional legality in the interregnum. They should be recognized and implemented by the supreme court as drawn from the constitution itself (Article 116 read with the preamble).

I hope Dr. Dhavan will continue to engage with contemporary legal issues in public fora, allowing us to have the benefit of his vast learning and astute insights.

Stimulating interview on contemporary Indian environmental challenges with Sunita Narain

A couple of days ago, the BBC's HardTalk featured a stimulating, informative, and combative interview with Sunita Narain , the Director of the Centre for Science and Environment, one of India's leading environmnetal NGOs, which was founded by the late Anil Agarwal.

Sunita Narain is an acclaimed scholar and award-winning activist, and she touched upon a number of issues during the course of the interview: the need for India to balance considerations of rapid economic growth with good environmental policies; the approach India should take towards nuclear energy; the crisis in relation to provision of water and problems with privatising the supply of water, etc.

Despite the interviewer's often hostile interventions, she was impressive for her ability to focus on the overall themes of her argument without being sidelined, and made her case with unusual eloquence and clarity. Academic-activists are beginning to carve out a space for themselves in public spaces in India ( recall the recent post on this blog about Bina Agarwal's contribution to the reform of the Hindu Succession Act).

The website of the programme carries a link to a video of the interview (originally broadcast on Nov 09) which may be available for a few more days - catch it while its still available!

A potential national debate over the separation of powers? A focus on views expressed by President Kalam and Arun Shourie

The Indian Express has, over the last two days, been reporting about a simmering national debate over the issue of separation of powers between the three wings of government. According to the Express, this issue was recently raised by no less a personage than President Kalam at a function to mark the “National Legal Literacy Day” on November 09. This high-powered event was attended by Chief Justice Sabharwal and many prominent judges, legislators and executive officials.

Having gone over the full text of the President’s speech, I am a bit skeptical of whether the President did indeed intend to cause the firestorm that the Express suggests has been set off. The speech, read in its entirety, does not appear to be confrontational. President Kalam does, of course, have a record of being forceful about views that he holds strongly. One recent example has been his activist approach on the issue of granting clemency petitions to death row inmates, details of which can be found in this excellent article by Ritu Sarin of the Indian Express. (This issue revives an old debate in Indian constitutional law about the powers of the President in relation to the pardoning power – the article reveals that Justices Bhagwati and Krishna Iyer hold different views on the subject). However, I am not convinced that President Kalam intended to similarly highlight the issue of separation of powers.

Here are President Kalam’s words that the Express is highlighting in a report carried yesterday:

‘‘All along it has been said that the executive is the third pillar of democracy which is independent of the other two. I, however, have a different view. Please do bear with me if I say that the independence that is expected of this pillar is only in theory and mostly eroded in actual practice,’’ Kalam told an august gathering here to mark National Legal Literacy Day.

“How can we expect an executive to function independently when each of its action is questioned and its functioning is made regularly actionable by, and accountable to the independent powers enjoyed by the legislature and the judiciary. Large number of regulations exist to constantly keep the actions of the executive under the watchful glare of the legislature and the judiciary and that unquestionably takes away the much bandied about independence of the executive.’’

Kalam then reminded all that ‘‘controls and provisions for interpretation and answerability are also applicable to the legislature and judiciary, but in their cases a built-in system within would be available for discharging those functions.’’

The full text of President Kalam’s speech (available at his informative and interesting website) contains this important caveat:

I am not even for a moment questioning the whys or why nots of such controls on the Executive; I am merely stating a fact that I personally have perceived watching our democratic system in actual practice.

I did not have the benefit of attending the actual event and my skepticism may stem from having read yet another bland speech which repeats trite statements about maintaining harmony between the constitutional agencies of government. The Indian Express clearly believes that this will lead to a snowballing crisis. Today’s editorial in the Express features the President’s speech and has this analysis to offer:

Has President Kalam stepped into the void between constitutional theory’s grand narratives and its messy practice? Or was he obliquely hinting at a radically different, valid path? With most other presidents, this benefit of doubt would have been hard to give.

But since he’s a president with a fine track record so far, Kalam’s point on the lack of internal controls in the executive — the contrast is with the legislature and the judiciary — deserves to be seriously noted. He is saying, it seems, that when constituents of the executive step out of bounds, the matter should be dealt with in-house. Translated in terms of recent political events, it may mean that when the Cabinet asked the president to sign the Bihar assembly dissolution order, the executive should have had recourse to correct the wrong. Why let the matter reach the courts? If that was the burden of the president’s song, it deserves the widest possible debate. It should be noted, though, that President Kalam didn’t utilise a quasi-option: sending the dissolution proposal back to the Cabinet once. His predecessor, K.R. Narayanan, did just that when the NDA wanted Bihar for itself. The NDA had to back off. Whether the UPA would have done the same is anyone’s guess. Which interpretation of the president’s speech it will like is easier to predict.

This is of course an interesting interpretation, but I cannot help wondering if this is reading too much into what actually transpired. Perhaps the coming days will prove me wrong.

What seems to have been missed as a result of this focus on President Kalam’s speech is the truly refreshing and stimulating speech delivered by current Rajya Sabha MP Arun Shourie at the same occasion. Fortunately, the full text of that speech is carried in today’s Indian Express, and it provides rich fare for those interested in constitutional law and current national politics. In his typically blunt style, but also displaying his considerable knowledge about the Indian judiciary gained by closely observing the courts for several decades, Shourie offers his insights into many existing problems. While Shourie's political and ideological leanings may cause some of us to disagree vehemently with him on specific issues, his views are often astute and he often clearly identifies problems that seem invisible to many. His recent speech deserves to be read in full and will, I hope, spark a much wider national debate than the one suggested by the Express’ recent news-items.

What I found most interesting in Shourie’s speech was his closing prescription:

How is the Judiciary in turn to be made accountable? By thorough, professional scrutiny of judgments. This has been a real lacuna in India, and the contrast with the way judgments are examined in the US and other countries is as sharp as can be. I do hope, therefore, that, even as judges do their work of guarding the Constitution, as professionals we will strengthen the Judiciary by analysing judgments with the care that they deserve, and the proper working of our Constitution requires.

This is indeed one of the most important tasks for those interested in Indian constitutional law, and I am sure that those who contribe to, and read, this blog will fully endorse this position.