Document: Text of Mike Procter's decision imposing 3 Test-Match ban on Harbhajan Singh

The three-match ban on Harbhajan Singh by Match Referree Mike Procter, invited intense scrutiny and criticism in the media, without I understand, access to the full text of Procter's decision. The ICC's website does not have it. None of the newspapers which had carried critical comments on it extensively, bothered to publish it in full. I thank Mr.Anil Divan, Senior Advocate, Supreme Court, who examined the decision in detail, in his article and later agreed to fax me a copy of Procter's full statement. With Justice John Hansen, New Zealand's Cricket's representative on the ICC Code of Conduct Commission set to hear India's appeal against Procter's decision at Adelaide on Jan.29 and 30, it is time we know how exactly Procter reached his conclusion, and what were Anil Divan's objections against it. Anil Divan's article is here. The full text of Procter's statement is here.

Launch of Indian Kanoon-Online Resource for Indian Court Decisions

A vibrant computer science student at the Univ of Michigan, Sushant, recently launched "Indian Kanoon", a fabulous online resource for Indian judgments. This valuable research tool will go a long way towards ensuring better access to the court's judgments by the general public and more robust public participation.

Indian Kanoon breaks law documents into smallest possible clause and by integrating law/statutes with court judgments. A tight integration of court judgments with laws and with themselves allows automatic determination of the most relevant clauses and court judgments.

Indian Kanoon sources data from indiacode.nic.in and all supreme court judgments from judis.nic.in, and crawls these sites for updates. I reproduce extracts of this service from the "about us" page.

"India prides herself as the largest democracy in the world. There are three broad pillars of Indian democracy: the legislatures who make laws, the executives who enforce laws and the judiciary that interprets laws. The laws regulate a number of activities like criminal offense, civil cases, taxation, trade, social welfare, education and labor rights.

Even when laws empower citizens in a large number of ways, a significant fraction of the population is completely ignorant of their rights and privileges. As a result, common people are afraid of going to police and rarely go to court to seek justice. People continue to live under fear of unknown laws and a corrupt police.

A number of attempts have been made to bring the knowledge of law to the common people. The Government of India took active efforts to present all laws along with their amendments at indiacode.nic.in and all court judgments at judis.nic.in. Similar efforts have been taken up by other privately owned websites like vakilno1.com and laws4india.com

While it is commendable to make law documents available to common people, it is still quite difficult for common people to easily find the required information. The first problem is that acts are very large and in most scenarios just a few section of laws are applicable. Finding most applicable sections from hundreds of pages of law documents is too daunting for common people. Secondly, laws are often vague and one needs to see how they have been interpreted by the judicial courts. Currently, the laws and judgments are separately maintained and to find judgments that interpret certain law clauses is difficult.

In order to remove the above two structural problems, Indian Kanoon is started. It achieves them by breaking law documents into smallest possible clause and by integrating law/statutes with court judgments. A tight integration of court judgments with laws and with themselves allows automatic determination of the most relevant clauses and court judgments. Hope Indian Kanoon helps you in your search for Indian laws and their interpretations."

Well done Sushant!! We need more people like you.

India's New Capitalists

Guest Blogger: Harish Damodaran

Harish Damodaran is a journalist who has worked for more than 16 years as a reporter and editorial analyst with the Press Trust of India and The Hindu Business Line. Currently Senior Assistant Editor at The Hindu Business Line, Damodaran has specialized in agri-business and commodities coverage -- a job which, besides involving tracking of price movements and harvest sizes of grains, oilseeds, pulses, sugar and dairy products, has given him ample opportunities to travel, observe, study and learn from people and things on the ground. Insights from field-level reportage over a sustained period have, in turn, helped in complementing his wider interest in macroeconomic policy, business and development issues, and also provide a more nuanced understanding of Indian society, history and politics. Damodaran is a recipient of the World Food Day Award-2000 from the UN Food & Agricultural Organization and the Indian Association for the Advancement of Science, given in recognition of his work as a farm reporter.

In December 2004, Damodaran was conferred a book-writing fellowship from the New India Foundation, Bangalore. The result was India’s New Capitalists: Caste, Business and Industry in a Modern Nation-State, which is being published by Permanent Black and Palgrave Macmillan. Written in a lucid style combining analytical rigor with journalistic flair, the 340-page book is slated for release in early 2008.

About the Book
Business in India has traditionally been the preserve of certain Bania communities clubbed under the Vaishya order of the classical Hindu chaturvarna (four-order) social hierarchy. So deep is this association that the term ‘Bania’ has over generations acquired a generic connotation, used interchangeably to refer to the village moneylender-cum-grocer, general merchant, produce financier or large factory owner.

This near-synonymous identification of business with the Bania and vice versa has, however, undergone significant dilution since the early part of the 20th century, which saw the entry of a number of businessmen from the ranks of the Brahmins, Khatris and similar castes with predominantly scribal or administrative background. The post-Independence period has witnessed a further widening of the social base of Indian capital to include various agrarian and allied service castes such as the Kammas, Naidus, Reddys, Rajus, Gounders, Nadars, Ezhavas, Patidars, Marathas and Ramgarhias. As a result, entrepreneurship is today no longer the exclusive bastion of the old mercantile groups: whether Banias, Jains and Marwaris or Sindhis, Lohanas, Bhatias, Parsis, Nattukottai Chettiars, Kutchi Memons, Khojas and Bohras. Capital’s social profile has expanded considerably beyond the Bania-plus complex to incorporate a wide spectrum of communities.

But this ‘inclusive capitalism’ has not followed a uniform pattern across India, being more a feature of the southern and western states. This contrasts with the North, which has not demonstrated a similar churning of the socio-business landscape. Moreover, even within the progressive regions, capital’s ‘democratization’ has not fully permeated to the lowest rung of the social ladder. For instance, country is yet to produce a single Dalit industrialist of note, even while competitive electoral politics and the institution of a welfare state after Independence has thrown up scores of high-ranking leaders, bureaucrats and judges from the erstwhile ‘untouchable’ castes.

India’s New Capitalists traces the modern-day evolution of business communities in India and, for the first time, systematically documents the rise of new entrepreneurial groups with no established pedigree of trading or banking. The book also contains 15 individual case studies that embellish the general findings.

Supreme Court filing rules (or lack thereof)

As a relative new-comer to the Indian legal system, I would be curious to get people’s thoughts on the Supreme Court’s filing rules (or lack of them). There are a lot of directions this conversation could go, but the two non-rules that I have had the most frustration with are page limits for filings and the annexure requirements (or norms) for citation. Figuring out new rules, or at least new norms, around these two issues I feel would save huge amounts of work and ultimately result in stronger decisions.

First, there seems to be no page limit for filings to the Supreme Court. Added to this difficulty, many lawyers unfortunately seem to think that a longer argument is a better one. This means the Court routinely gets clogged with briefs that are hundreds of pages long (in big cases, multiple briefs of this size). It becomes almost impossible for any justice to read these briefs as thoroughly as they should. Further, I personally think the arguments become weaker with such length. Lawyers perhaps feel with all this space there is no need to find the concise language and on-point facts to make the case as strongly as they should. This unfortunate tendency is additionally supported I think by the strong Indian oral tradition in which many lawyers seem to believe they can save any weaknesses or undeveloped parts of their filing in oral argument (although examining the pros and cons of the current oral argument arrangement in the Supreme Court is another blog entry entirely). I feel all this leads to more bad legal drafting than there should be if a page cap was given to lawyers for their briefs, which just means there are worse inputs for the ultimate judgment.

I understand that the Court’s lax filing rulings are in place in part to make it more accessible to the average Indian. However, most Indians aren’t writing very long briefs (or briefs at all, even if they do send a letter sometimes that becomes a brief). Further, exceptions could, of course, be made to any page limit rule (or norm) to accommodate those who are not trained lawyers.

Second, the annexure norms for filing seem ill-suited for their task and I think weaken many lawyer’s filings. The norm (it may be a rule) as far as I can tell is that any citation that is not to the Constitution, a Supreme Court case, or some equally commonly used document by the Court must be annexed (often in full, although sometimes annexures are just of extracts). As a result, a big case requires a dedicated staff simply to carry it to court and make photocopies for all concerned. Mounds of paper are wasted and shuffled. Most of the annexures will never be read (or certainly not in their entirety). Some annexures do deserve to be placed in full before the Court (for example, a report on which a PIL is based), but often law review articles and sections of books of questionable relevance make up a considerable part of the mound of papers that surrounds any justice while he or she is on the bench. With the advent of the internet and the increasing use of clerks it seems unproductive to continue this practice which I believe was created because it use to be much more difficult for the Court to access secondary sources itself. It seems it would be helpful to spell out in some specificity what should and should not be annexed and create a new norm where most sources wouldn’t need to be. If anything this measure would be more pro-people as I have talked to lawyers who work with the poor that complain about the high cost of photocopying (in both money and time) and have said they have not cited some articles because they were not necessary to the case (although helpful) and they didn’t want to have to annex them.

These are just initial impressions after being here a year or two. I would be curious to hear if people think I am way off on all this or can shed light on why changes like these have not occurred.

Jallikattu & Ramar Setu: understanding Supreme Court's confusion

The Supreme Court's reversal of its own order refusing to vacate the stay on the holding of the traditional village sport in Tamil Nadu, Jallikattu has caused quite a consternation. (Animal Welfare Board vs. A.Nagaraja) A sample of readers reactions as carried in The Hindu is here, here and here. The three Judge Bench first refused to vacate the stay on the ground that the sport is barbaric, and later when pointed out by the Tamil Nadu Government, that the sport is part of religious festival of Pongal, the Bench relented, on certain conditions, to rule out cruelty to the bulls, and injuries to participants and spectators. The SC's refusal to vacate the stay was greeted by The Hindu, but criticised by Mail Today.

The Supreme Court also orally expressed its surprise that Tamil Nadu Government invoked the religious ground. The Court, according to reports, alluded (as mentioned in The Times of India) that the State opined in the Ramar Setu case, following its ideology of rationalism, that the religious feelings did not matter in the construction of the Sethusamudram project. The Bench said it did not agree with all the reasons cited by the State for lifting the stay. But the Supreme Court's lack of explanation for reversing its own decision is astounding. Does the Supreme Court signal that religious ground is sufficient enough a reason for review of its decisions? The implications are ominous, even if the vacation of the stay is only for this year, till the Supreme Court hears the appeal against the Madras High Court's verdict permitting Jallikattu.

There is an inescapable feeling that the Supreme Court came under pressure to review its decision not to vacate the stay, faced with the prospect of defiance of its order by a determined local population in Madurai district. True, people's sentiments rooted in culture and tradition were involved, and would have been hurt, if the SC refused to vacate its stay. But religion? Did the TN Government confuse religion with the local culture and tradition? Does the SC suggest that while religious sentiments cannot be hurt by a Court-inspired ban on a rural sport, similar immunity cannot be bestowed on local culture and tradition, ableit followed by a small minority of villagers in Madurai?

It may be worthwhile to read the Madras High Court's Division Bench's judgment in the case of K.Muniasamy Thevar vs. Deputy Superintendent of Police (MANU TN/8256/2007) delivered by Justices Dharma Rao Elipe and P.P.S.Janarthana Raja on March 9, 2007.

The case had its origin when the appellant felt aggrieved by the interference by the police in the holding of the traditional sports events, such as jallikattu, manjuvirattu, Rekla Race (bullock cart race)and sought an end to such interference. The Single Judge, Justice R.Banumathi, not only rejected his petition, but went beyond the scope of the petition, by imposing a ban on all the three village sports events, including Jallikattu, assuming that there was cruelty to the animals. (MANU/TN/9319/2006). The appeal was heard by the Division Bench. The Animal Welfare Board impleaded as a party.

The Additional Advocate General appearing for the State, told the Division Bench that not only the Hindus, but also persons belonging to other religious faiths take part in these sports-events, which indirectly promote religious harmony in the State. He appealed to the Bench to consider the religious, cultural rights involved, giving due respect to the feelings, sentiment and religious practices of the people. The sport events are part and parcel of Tamil Culture and religion, he said. Here, you may notice that the Tamil Nadu Government used Tamil Culture and religion almost synonymously, that is, religion ought to be understood in the cultural sense, and not in the sense of organised religion - a phenomenon of contemporary times. The petitioner in the Sethusamudram case, Subramanian Swamy has already drawn the Court's attention to the Tamil Nadu Government's plea in the Jallikattu case.

Therefore, for the Supreme Court to read in the Tamil Nadu Government's claim that religious sentiments would be hurt if the stay was not vacated, something similar to the claim of those opposing the Sethusamudram Project would be a distortion of Tamil Nadu Government's intent and its declaration before the Madras High Court Division Bench. True, the Tamil Nadu Government may not have had the opportunity to explain its stand better, as it was thrust with the responsibility of vacating the stay to avoid a law and order problem, but should the SC ignore the Madras High Court's judgment, before refusing to vacate the stay, and later doing so, by seemingly imposing some conditions? The Madras High Court judgment, in fact, lays down similar conditions. But these conditions could not be tried, because of the SC's stay.

The Madras High Court did not even consider the "religious sentiment" as the core issue in this case, despite the clarification of the AAG. The core issue, according to it, was only with reference to the "treatment of the animals" during the said events, and whether such treatment would amount to "cruelty" within the meaning of S.11 of the Prevention of Cruelty to the Animals Act, 1960. The Bench had noted in its judgment: "It is more or the less the exhibition of the performance of a trained bull by its owner before the villagers. The exhibition of performance of trained animals is permitted under Chapter V of the Act, of course, subject to certain restrictions mentioned therein."

The Bench further noted: "There can be no second opinion of the fact that the said sport-events are part and parcel of the Tamil village culture and are closely wedded to the life-style of the villagers. The imagination or visualisation of the harvest season of villages in the State of Tamil Nadu would be imcomplete without "Jallikattu", "Manjuvirattu", "Reklarace", etc. When our traditional and cultural life-style of India, more particularly the life-style of the villagers, is being rabbidly effaced by the influence of the Western culture, it is imperative that our village traditional and cultural events are preserved and maintained."

To conclude, the SC's refusal to vacate the stay on Jan.11 was flawed. Its insufficient explanation for vacating it on Jan.15 is even more flawed than the previous one.

Beyond marriage?

Is the Supreme court finally willing to look at the substance of a relationship, beyond the satisfaction of formal requirements? In a judgment delivered yesterday, the Court seems to have held that a long term live-in relationship couple will be treated as married for the purposes of legitimacy of their child. The news report seems to suggest that this position was arrived at only through a strong presumption of marriage in case of proven long cohabitation, rather than accepting that they are different categories that need to be treated similarly.

Given the politically volatile nature of family laws, the courts has generally been cautious in applying modern constitutional principles to these laws (particularly the infamous State of Bombay v. Narasu Appa Mali, 1952 Bombay High Court, where it was held that personal laws do not qualify as 'law' within Article 13 and therefore dont need to be tested for fundamental rights violations - a judgment still waiting to be overruled.) Of course, there have been a few exceptions, and this case seems to be one of them.

On the substantive issue of treating cohabitation with marriage, there is a tension between the need to protect the financially vulnerable party in the relationship and the need to respect the parties' choice to not formalise their relationship and accrue the incident rights and obligations (to the extent that such decisions are actually a result of 'choice'). The Law Commission of the UK came out with a report last year, recommending certain marriage like rights for long-term cohabitees, while responding to this debate.

Of course, the very legitimate-illegitimate child distinction (whether born in marriage, long-term relationship or after a one-night-stand) itself is susceptible to an Article 14/21 challenge for the simple reason that it punishes a child for no fault of hers in a matter she had no say whatsoever.

Update - On reading the actual judgment in Tulsa v. Durghatiya, I have a more sober reaction. No argument regarding the rights of cohabitees was made or considered. The Court only reiterated a well-established principle of a strong but rebuttable evidentiary presumption of marriage for long-cohabiting couples. So much for sensational media headlines!

Reply to Talha's comment - I don't think that common law marriage is recognised by Indian law (or UK law, for that matter). Perhaps other jurisdictions recognize it. The entire need for the UK Law Commission to recommend rights for cohabitees was premised on the fact that there is no concept of common-law marriage in English law. To quote from para 1.26 of its Report,
"The [Consultation Paper] examined the case for reform of the law as it applies to cohabitants on their separation. It started by making clear what the law does not do and drawing attention to the popular misconception about the legal status of cohabitants, centred on what is known as the “common law marriage myth”. This myth perpetuates the mistaken belief that the law of England and Wales recognises cohabitants as “common law spouses” once they have lived together for some period of time."

SC Judgment on Patient's Informed Consent

Today’s Hindu carried a news item about a SC decision delivered by a three-judge bench on the need for a patient’s informed consent before the doctor embarks on a surgical procedure. The report, quoting from the opinion, said that not only is it imperative but the consent so obtained is limited to the procedure planned:

““the doctor should disclose the nature and procedure of the treatment and its purpose, benefits and effect; alternatives if any available; an outline of the substantial risks; and adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment.” The Bench made it clear that consent given only for a diagnostic procedure could not be considered as consent for therapeutic treatment. “Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defense in an action in tort for negligence or assault and battery.”

This view is unexceptionable. In this case, the doctor began by conducting a diagnostic laparoscopy but followed it up immediately thereafter, having obtained additional consent only from the patient’s mother (as the patient was still unconscious), with a second and more elaborate treatment procedure (‘laparotomy’) that resulted in removal of the patient’s uterus and ovaries (hysterectomy and bilateral salpingo-oophorectomy). [The patient, upset over this fact, refused to pay upon discharge. The doctor sued for recovery of charges and got a favorable ruling from the National Consumers' Commission. The patient appealed in the SC]. The consent form signed by the patient at the very beginning stated that the patient had been informed that the treatment to be undertaken is ‘diagnostic and therapeutic laparoscopy. Laparotomy may be needed’. The outcome of the case turned on the definition of ‘laparotomy’ – the word simply refers to opening the abdomen; so, in this instance, did it also imply consent to remove organs from the patient’s abdomen after it had been opened (as the doctor argued)? The court’s answer was in the negative and it emphasized that if that was indeed the case, the consent form ought to have read “"diagnostic and operative laparoscopy. Laparotomy, hysterectomy and bilateral salpingo-oopherectomy, if needed."

The analysis ought to have ended at this point. Strangely, the court added soon after: “The words "Laparotomy may be needed" in the consent form dated 10.5.1995 can only refer to therapeutic procedures which are conservative in nature (as for example removal of chocolate cyst and fulguration of endometric areas, as stated by respondent herself as a choice of treatment), and not radical surgery involving removal of important organs.” This only raises more issues than it solves. One may well ask how ‘laparotomy’ can also mean ‘laparotomy, cystectomy (removal of cyst) and fulguration’ but not ‘laparotomy, hysterectomy and bilateral salpingo-oophorectomy’. Even if one answers that this is a matter of degree (a limited or ‘conservative’ procedure being acceptable without a separate heading), it may only serve to ignite more controversy over what constitutes a ‘conservative’ as opposed to a ‘radical’ procedure, questions that are not easily settled. Furthermore, even in the specific context of this patient’s diagnosis, a ‘conservative’ surgical option did not really exist (as the expert witness testified), so the more ‘liberal’ reading of ‘laparotomy’ as the court suggests does not make much sense.

This is however a relatively minor point. The importance of the decision lies really in the court’s recognition of obtaining a proper and informed consent and reasonably limiting the scope of intervention to what is permissible therein. Future cases may well arise on the scope of information that ought to be revealed, the distinction between a substantial and an insubstantial risk, and exceptional instances where the benefits of revelation may be outweighed by the potential harm to the patient.