Guest Post from Sushant Sinha:
Government has taken significant effort in making primary legal resources publicly available on the Internet. The commitment seems to be present but what is lacking is in details. M J Antony highlights some of these problems in in his business standard piece. He points out that there is a lack of standardization across court websites and the search options are complicated for common people to use. The second problem he highlights is that the tribunals and many high courts are working very slowly to achieve this goal. Sikkim, Gauhati and Patna high courts have not yet started uploading the judgments on their websites and some tribunals have made very few judgments online. A standard user interface is often a contentious debate as it depends on how people search a particular set of documents. However, difference in opinions is not the real problem here. The problem is that the court website designers have not thought about the design well to justify their interfaces. Most of the interfaces seem ad hoc and are backed by a very narrow use case. For example, many court websites allow you to search for court judgments by year and number. This is useful if you are involved in the case but rarely useful if you are a general user and looking for new judgments. So standardization is not the real solution but a careful analysis of use cases and then designing user interfaces to support them is required. Antony is quite accurate that some high courts and tribunals are slow in uploading judgments. I would definitely like that to be speeded up. Beside these issues, court website operators have other problems that they should think about. Punjab and Haryana court had a legal warning on the website threatening that others should not copy the judgments from their website for commercial purposes. Considering judgments are in public domain, such warnings seem wrongly placed. I emailed them a few months back but never got any reply. Later I found that they removed the warning. Tarunabh in his Frontline piece highlighted a similar encumbered access to the online availability of gazettes. IndiaCode has been a wonderful effort in making all central laws along with their amendments available online. However, some acts like the Copyright Act have not been updated recently. Some statutes like the Code of Civil Procedure is not available. I have emailed them earlier requesting their update policy and the reason behind missing documents. But I have not been lucky to be blessed with a government reply.
It is hard to speculate why such problems exist. My guess is that the government offices may be understaffed or that they do not have enough expertise. If lack of expertise is the issue, then government should try to involve the community for their software development. A few steps required for this will be to open up their code bases to public and then start being more responsive. There will be far better code reuse and many people including me would be happy to supply them with better designs and bug fixes.
(Sushant runs the search site for legal databases Indian Kanoon)
Saturday, February 14, 2009
Friday, February 13, 2009
Extending impunity under Prevention of Corruption Act
In the last Parliamentary session, the Lok Sabha passed an amendment to the Prevention of Corruption Act, 1988. the amending Bill is due to be presented in the Rajya Sabha in this session. One of the provisions that this Bill seeks to extend is the requirement of prior governmental sanction to prosecute a public servant under section 19 of the Act to former public servants as well. The amendment seeks to undo the decision of the Supreme Court in Badal v. State of Punjab, where the Court held that section 19 protection is not available to former public servants.
The general requirement of sanction for prosecuting public servants is contained in s 197 of the Code of Criminal Procedure. Our blog has previously described how this provision is the main reason for impunity in mass crimes. This absence of sanction under this provision was the reason why the Calcutta High Court recently quashed criminal proceedings against a police officer in a custodial death case. In a recent decision in a case filed by the Andhra Pradesh Civil Liberties Committee, the AP High Court has directed that all encounter deaths should be treated like murder. I haven't seen the text of the judgment yet, but given that police officers are usually involved in enounter death cases, one wonders if the judgment specifically creates an exception to s 197.
The statement of Objects and Reasons in the Prevention of Corruption (Amendment) Bill says:
'The purpose of section 19 of the said Act is to provide a safeguard to a public servant from vaxatious prosecution from any bonafide omission or commission in thedischarge of his official duties. Presently, this protection is not available for a person whohas ceased to be a public servant. The said section is being amended to provide the saidprotection to the persons who ceased to be public servants on the lines of section 197 of theCode of Criminal Procedure, 1973.'
The fear of vexatious prosecution shows that the government does not trust its own police and prosecution agencies (there is relatively little scope for citizen-driven prosecution under the Code of Criminal Procedure, without cooperation from the state). If the prosecution agencies allow vexatious prosecution, surely that is a reason to reform them. After all, why is it ok to allow such prosecution of private citizens but not public servants? Dicey's insistence that rule of law requires that every person be governed by the same law before ordinary courts has an important lesson - if the powers-that-be are equally affected by ordinary laws, they will have a vested interest in fixing its problems. This impunity makes sure that there is a separate system for public servants, and gives them no incentive to fix our criminal justice system.
In any case, even if there is a case to be made for screening out cases for vexatious prosecution against public servants, surely the screening should be judicial rather than political. Experience leaves us in no doubt that this political screening has been done arbitrarily. It is perhaps time to challenge the constitutional validity of these provisions under Article 14. In the meantime, Rajya Sabha will do well to refuse to pass the amendment.
The general requirement of sanction for prosecuting public servants is contained in s 197 of the Code of Criminal Procedure. Our blog has previously described how this provision is the main reason for impunity in mass crimes. This absence of sanction under this provision was the reason why the Calcutta High Court recently quashed criminal proceedings against a police officer in a custodial death case. In a recent decision in a case filed by the Andhra Pradesh Civil Liberties Committee, the AP High Court has directed that all encounter deaths should be treated like murder. I haven't seen the text of the judgment yet, but given that police officers are usually involved in enounter death cases, one wonders if the judgment specifically creates an exception to s 197.
The statement of Objects and Reasons in the Prevention of Corruption (Amendment) Bill says:
'The purpose of section 19 of the said Act is to provide a safeguard to a public servant from vaxatious prosecution from any bonafide omission or commission in thedischarge of his official duties. Presently, this protection is not available for a person whohas ceased to be a public servant. The said section is being amended to provide the saidprotection to the persons who ceased to be public servants on the lines of section 197 of theCode of Criminal Procedure, 1973.'
The fear of vexatious prosecution shows that the government does not trust its own police and prosecution agencies (there is relatively little scope for citizen-driven prosecution under the Code of Criminal Procedure, without cooperation from the state). If the prosecution agencies allow vexatious prosecution, surely that is a reason to reform them. After all, why is it ok to allow such prosecution of private citizens but not public servants? Dicey's insistence that rule of law requires that every person be governed by the same law before ordinary courts has an important lesson - if the powers-that-be are equally affected by ordinary laws, they will have a vested interest in fixing its problems. This impunity makes sure that there is a separate system for public servants, and gives them no incentive to fix our criminal justice system.
In any case, even if there is a case to be made for screening out cases for vexatious prosecution against public servants, surely the screening should be judicial rather than political. Experience leaves us in no doubt that this political screening has been done arbitrarily. It is perhaps time to challenge the constitutional validity of these provisions under Article 14. In the meantime, Rajya Sabha will do well to refuse to pass the amendment.
Mysteries of law making
There is an interesting article in The Hindu by the CPI National Secretary, and MP, D.Raja (A design to block opportunities)revealing not just how hastily the Scheduled Castes and Scheduled Tribes (Reservation in Posts and Services) Bill, 2008 was passed by the Rajya Sabha in December 2008, but how key changes were introduced in the Bill stealthily. The Bill, everyone avers, was required because till now reservations for SCs, and STs (and for OBCs)have been provided through executive orders. Raja's main objection is against S.4(1) of the Bill which removes 47 government institutions from the purview of quota. (The list can be enlarged by the government).
The Bill has a long trajectory. The Bill had originally included the OBCs in its ambit, and was introduced in the Lok Sabha in 2004. The Parliamentary Standing committee report on the bill was submitted in June 2005. Raja says the Govt. rejected the report and inserted S.4(1) which was not there in the Bill, and which the committee did not recommend. More important, the Govt. did not consult the relevant Ministries. Sure enough, there will be lot of heat in the Lok Sabha and amendments will be suggested to this Bill, which then may have to get the clearance afresh in Rajya Sabha. The summary of the Bill, provided by the PRS Legislative Research,is here.
My interest in this post is on the procedural issue: Just who had managed to insert S.4(1) in the Bill, when it is likely to ignite a huge political controversy? It will remain a mystery, unless one goes into the various stages of the evolution of this Bill and the various hands it passed through till it was passed by the Rajya Sabha.
The original Bill referred to the Standing Committee is here.
The Standing Committee report can also be read here, courtesy PRS. The summary of the 2004 Bill is also available here.
The Bill has a long trajectory. The Bill had originally included the OBCs in its ambit, and was introduced in the Lok Sabha in 2004. The Parliamentary Standing committee report on the bill was submitted in June 2005. Raja says the Govt. rejected the report and inserted S.4(1) which was not there in the Bill, and which the committee did not recommend. More important, the Govt. did not consult the relevant Ministries. Sure enough, there will be lot of heat in the Lok Sabha and amendments will be suggested to this Bill, which then may have to get the clearance afresh in Rajya Sabha. The summary of the Bill, provided by the PRS Legislative Research,is here.
My interest in this post is on the procedural issue: Just who had managed to insert S.4(1) in the Bill, when it is likely to ignite a huge political controversy? It will remain a mystery, unless one goes into the various stages of the evolution of this Bill and the various hands it passed through till it was passed by the Rajya Sabha.
The original Bill referred to the Standing Committee is here.
The Standing Committee report can also be read here, courtesy PRS. The summary of the 2004 Bill is also available here.
When Should a Disposal Become an Opinion?
So, here's the breakdown. In 2007, the Supreme Court disposed of 61,845 matters. 5,054 of these were regular hearing matters. Out of these the Supreme Court released 1,488 written decisions (based on JUDIS). That year there was about a 29.5% chance that a disposed regular hearing matter would result in a written decision (at least one that would in any way live on in SCR or Manupatra or Indian Kanoon, etc.). And keep in mind, only published decisions have a realistic chance of impacting the law going. In 2006, about 24% of disposed regular hearing matters resulted in a released written decision (1146 out of 4762). In 2005, 19.6% (861 out of 4382). (Overall based on these years there seems to be about a 1.8% to 2.8% chance that a case that gets submitted during admission phase will eventually result in a released written decision, although these numbers are approximations because cases enter the system during different years).
Now, these numbers I cited so far I am fairly confident in because the disposal numbers are from the Court and can also be checked against the Supreme Court's annual report (and they are close, even if not quite a perfect match) and the JUDIS numbers can be checked against Manupatra and Indian Kanoon (and the numbers are close, although not a perfect match if you do searches in these years). When you try to look historically it's difficult to be as confident in the numbers, but is still worthwhile. The annual report lists disposal numbers for past years which I will assume are accurate (although sometimes they vary somewhat widely between subsequent years). Furthermore, when you do searches on JUDIS (J), Manupatra (M), and Indian Kanoon (K) for previous years you start getting fairly divergent results. For a bit of flavor look at this preliminary chart (apologies for the scrunching - the first number is the year, followed by the number of disposed of regular hearing matters that year, followed by the number of written opinions that came out that year based on legal database searches, with the last number being the % this is of the disposed of regular hearing matters):
Year Reg. Hearing Disposal Written Decisions %
1951 227 54(J)/80 (K) 24
1955 200 81(J)/126(K) 40
1960 1,271 273(J)/328(K)/320(M) 21
1970 2,569 258(J)/408(K)/507(M) 10
1980 2,433 239(J)/448(K)/511(M) 10
1990 4,348 405(J)/715(K)/769(M) 9
2000 4,320 714(J)/1548(K)/1769(M) 17
2003 6,905 714(J)/1324(K)/1147(M) 10
2005 4,382 861(J)/918(K)/858(M) 20
2006 4,762 1146(J)/1193(K)/1140(M) 24
2007 5,054 1488(J)/1522(K)/1439(M) 30
2008 6,240 2676(J)/2443(K)/1877(M) 43
The %'s are based on Judis numbers, and some years they would be quite different if you based them on Kanoon or Manupatra. I'm not sure what accounts for this variation, but perhaps someone can comment on it who might know. It is difficult to draw too many conclusions until this is clarified. It does seem in the last few years at least there has been a spike in both the raw number of judgments released and their % of overall disposed of regular hearing matters. (It should also be noted these are just general searches of legal databases by year so they would also pick up interim orders, but this should be a relatively small part of the overall hit load).
Even once we get a better handle on these numbers historically, do we know what an ideal % level or raw number would be for the number of judgments the Court writes and releases each year? For some Supreme Courts (like the U.S.) it writes and releases close to 100% of judgments for regular cases it disposes of, but it's caseload is obviously much smaller and it has a different function in American society and within the American judiciary. Written opinions provide accountability and arguably legitimacy, but they may not be needed/desired in many cases the Indian Supreme Court disposes of. However, what are all these cases that don't result in a written, released opinion? And what % are what? Are they dismissals? Are they withdrawn from court in a settlement that doesn't result in an opinion? Are they one-line orders not worth reporting? Are they orders just spoken in court? Are they cases that don't involve a point of law, and if so, what are they being decided on?
Once we have a better sense of what these unreported cases are we would then have better information to judge how many of them should result in written, released judgments that are then documented in SCR, etc. Also, it would give us a better sense of how, if at all, we want to keep track of them - perhaps, the Court should provide for the public some other type of record that indicates what happens to this part of its caseload. Alternatively, it might be decided that this isn't needed and would just be a waste of time.
Because of the Indian Supreme Court's high caseload it's an apex court that lends itself to/requires analysis through statistics in a way other Apex Courts might not. It's impossible for any one person to follow all of the Court's activities without in part using using statistics to break down it's caseload. This is not to say in any way you can understand what the Court does solely through statistics - you obviously can't; or that you can't be misled by them - you obviously can. The challenge, and the academic debate, in this situation I would argue is to determine which statistics are desirable to track, figure out what they mean, and then use this information to inform your decisions and arguments about where the Court should head.
Now, these numbers I cited so far I am fairly confident in because the disposal numbers are from the Court and can also be checked against the Supreme Court's annual report (and they are close, even if not quite a perfect match) and the JUDIS numbers can be checked against Manupatra and Indian Kanoon (and the numbers are close, although not a perfect match if you do searches in these years). When you try to look historically it's difficult to be as confident in the numbers, but is still worthwhile. The annual report lists disposal numbers for past years which I will assume are accurate (although sometimes they vary somewhat widely between subsequent years). Furthermore, when you do searches on JUDIS (J), Manupatra (M), and Indian Kanoon (K) for previous years you start getting fairly divergent results. For a bit of flavor look at this preliminary chart (apologies for the scrunching - the first number is the year, followed by the number of disposed of regular hearing matters that year, followed by the number of written opinions that came out that year based on legal database searches, with the last number being the % this is of the disposed of regular hearing matters):
Year Reg. Hearing Disposal Written Decisions %
1951 227 54(J)/80 (K) 24
1955 200 81(J)/126(K) 40
1960 1,271 273(J)/328(K)/320(M) 21
1970 2,569 258(J)/408(K)/507(M) 10
1980 2,433 239(J)/448(K)/511(M) 10
1990 4,348 405(J)/715(K)/769(M) 9
2000 4,320 714(J)/1548(K)/1769(M) 17
2003 6,905 714(J)/1324(K)/1147(M) 10
2005 4,382 861(J)/918(K)/858(M) 20
2006 4,762 1146(J)/1193(K)/1140(M) 24
2007 5,054 1488(J)/1522(K)/1439(M) 30
2008 6,240 2676(J)/2443(K)/1877(M) 43
The %'s are based on Judis numbers, and some years they would be quite different if you based them on Kanoon or Manupatra. I'm not sure what accounts for this variation, but perhaps someone can comment on it who might know. It is difficult to draw too many conclusions until this is clarified. It does seem in the last few years at least there has been a spike in both the raw number of judgments released and their % of overall disposed of regular hearing matters. (It should also be noted these are just general searches of legal databases by year so they would also pick up interim orders, but this should be a relatively small part of the overall hit load).
Even once we get a better handle on these numbers historically, do we know what an ideal % level or raw number would be for the number of judgments the Court writes and releases each year? For some Supreme Courts (like the U.S.) it writes and releases close to 100% of judgments for regular cases it disposes of, but it's caseload is obviously much smaller and it has a different function in American society and within the American judiciary. Written opinions provide accountability and arguably legitimacy, but they may not be needed/desired in many cases the Indian Supreme Court disposes of. However, what are all these cases that don't result in a written, released opinion? And what % are what? Are they dismissals? Are they withdrawn from court in a settlement that doesn't result in an opinion? Are they one-line orders not worth reporting? Are they orders just spoken in court? Are they cases that don't involve a point of law, and if so, what are they being decided on?
Once we have a better sense of what these unreported cases are we would then have better information to judge how many of them should result in written, released judgments that are then documented in SCR, etc. Also, it would give us a better sense of how, if at all, we want to keep track of them - perhaps, the Court should provide for the public some other type of record that indicates what happens to this part of its caseload. Alternatively, it might be decided that this isn't needed and would just be a waste of time.
Because of the Indian Supreme Court's high caseload it's an apex court that lends itself to/requires analysis through statistics in a way other Apex Courts might not. It's impossible for any one person to follow all of the Court's activities without in part using using statistics to break down it's caseload. This is not to say in any way you can understand what the Court does solely through statistics - you obviously can't; or that you can't be misled by them - you obviously can. The challenge, and the academic debate, in this situation I would argue is to determine which statistics are desirable to track, figure out what they mean, and then use this information to inform your decisions and arguments about where the Court should head.
Thursday, February 12, 2009
Assorted Links
1. Outcome of the Saudi rehab program for jihadists: A previous post regarding this can be accessed here. Now the Saudi government has announced that eleven former enrollees in this program have returned to join terror groups. If you include prominent figures in that, the recidivism rate appears quite high.
2. There are several articles on surrogacy and the ART bill in IJME:
a. Social and ethical basis of legislation on surrogacy: Need for debate by Imrana Qadeer
b. Regulate technology, not lives: A critique of the draft ART (Regulation) bill by Chayanika Shah
c. The draft ART (Regulation) Bill: in whose interest? by N.B.Sarojini and Aastha Sharma.
3. An interesting debate on the future of civil liberties as technology grows (link via The Volokh Conspiracy) written with respect to the
a. The constitution in the National Surveillance State by Jack Balkin
b. The National Surveillance State: A Response to Balkin by Orin Kerr.
4. Nature and Science have published special editions on account of the 200th anniversary of the birth of Charles Darwin and 150th anniversary of the publication of
a. A debate on whether race and IQ ought to be scientifically studied or not owing to their ramifications on society.
i. Should scientists study race and IQ? No: science and society do not benefit by Stephen Rose.
ii. Should scientists study race and IQ? Yes: The scientific truth must be pursued by Stephen Cici and Wendy Williams.
Readers may also recollect the controversy evoked by James Watson’s comments to The Sunday Times on the intellectual inferiority of Africans and a robust defense of Watson by Jason Malloy.
b. Human nature: the remix (PDF is here) talks about ‘human universals’, i.e., human commonality across cultures in matters such as emotional expression, language, religion, math, morality and intertwining of biology and culture.
c. Bracing for Islamic creationism by Salman Hameed dwells on teaching of evolution and popular acceptance of the theory in the Islamic world.Judicial notice of unenforced legislation
We have discussed the problem of unenforced legislations (i.e. Acts duly passed by Parliament but not brought into force by government) previously on this blog. The recently passed amendments to the Code of Criminal Procedure appear set to join the ranks. Rather sad for undertrial prisoners, who would have been the main beneficiary of these amendments. In fact, the Supreme Court recently rejected a plea to monitor the release of undertrial prisoners languishing in prisons citing this amendment (and apparently without realising that it hasn't come into force, or may never do so). It said that these amendments had taken care of the problem of undertrial prisoners charged with less-serious offences.
Another news story claims that the Court also said that its own arrest jurisprudence laid down in DK Basu is also now irrelevant after this amendment. This news story does not make sense and the actual order in the case does not report what must have been casual observations from the bench.
Another news story claims that the Court also said that its own arrest jurisprudence laid down in DK Basu is also now irrelevant after this amendment. This news story does not make sense and the actual order in the case does not report what must have been casual observations from the bench.
The Last Founder Dies
The last surviving member of our Constituent Assembly, Ranbir Singh Hooda, died on February 1. I'm unclear whether Hooda made any significant contributions to the Constituent Assembly's deliberations. This is something I hope to investigate further as part of my ongoing research on how our Constitution was created and adopted. But I suppose it is an achievement, in and of itself, that Hooda outlived all of his other founder colleagues (they were men and women; which is why the use of the collective "founding fathers" is inappropriate). He lived for almost sixty years after the product of their labours came into force.
The Haryana government reportedly plans to create a monument to the founders in Rohtak. Thankfully, it won't be another Delhi-based monument (even if it is very close to the National Capital Territory). I think every state capital needs such a monument as an educational and research institution on the Constitution and the values it embodies. Two years ago, I visited the National Constitution Centre in Philadelphia (not in Washington, DC, if I may point out). It is a truly fascinating interactive museum that explains the meaning and significance of the U.S. Constitution to the people. I wonder when Indian cities will have a similar facility.
The Haryana government reportedly plans to create a monument to the founders in Rohtak. Thankfully, it won't be another Delhi-based monument (even if it is very close to the National Capital Territory). I think every state capital needs such a monument as an educational and research institution on the Constitution and the values it embodies. Two years ago, I visited the National Constitution Centre in Philadelphia (not in Washington, DC, if I may point out). It is a truly fascinating interactive museum that explains the meaning and significance of the U.S. Constitution to the people. I wonder when Indian cities will have a similar facility.
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