Wednesday, April 16, 2014

DAKSH-India Together Data Journalism

DAKSH and India Together have jointly instituted the DAKSH-India Together Fellowship to encourage data journalism centered around elections. Two of our fellows have written insightful pieces, one on women MPs http://indiatogether.org/low-presence-of-women-in-lok-sabha-government and the other on the multitude of political partieshttp://indiatogether.org/fragmentation-in-indian-party-system-analysed-government in India. In this age of "opinion journalism", this is certainly a welcome trend.

National Legal Services Authority versus Union of India -- Preliminary Reactions

This is a guest post by Danish Sheikh, an advocate who is presently doing a masters in law at Michigan Law School.
 
In 2004, Kokila, a hijra in Karnataka, was brutally raped by ten men, only to be tortured by the police to whom she went to report this crime. Kokila filed an affidavit to this effect before the Supreme Court of India in Suresh Kumar Koushal - an affidavit that was then read out before the Court by one of the lawyers in the matter. Amongst the many instances of apathy that the Court displayed in its judgment, its complete refusal to acknowledge brutalities like these suffered by the transgender community was perhaps the most glaring.
 
With National Legal Services Authority versus Union of India, the Court takes a crucial step towards course correcting. When it comes to violations of minority rights, "Constitutional Courts cannot be mute spectators", they declare. In the process they craft an immensely empowering document that is deeply empathetic to transgender and oppression, while also giving jurisprudential ammunition to the entire LGBT community.
 
Now, approaching the Supreme Court of India with a blanket petition asking for recognition of transgender rights was always going to be a complicated proposition. The NALSA Petition itself only asked for rights for the "third gender" which would have left out the entire range of people who wanted to transition their gender within the male-female binary. Thankfully, the Court takes this question head on, clarifying its analysis down two strands: one, where transgenders may be treated as a third gender, and two, where they may decide their gender within the male/ female binary regardless of their biological sex.

The Court goes through a lengthy recounting of comparative law relating to recognition of transgender identity, starting from the infamous Corbett v. Corbett with its complete emphasis on biological sex, to New Zealand's standard requiring surgical and medical procedures to effect a transformation in Attorney-General v. Otahuhu Family Court. The Court rejects any basis of gender in biology, instead arguing that the test to be applied is a psychological one: "psychological factor and thinking of transsexual has to be given primacy".

This is crucial: for the right to recognition to be a meaningful one, it must be easily accessible. There are many kinds of impediments a transgender individual might face on the road to recognition; common ones in India include the requirement of extended counselling and certification with Gender Dysphoria, coupled with the fact that there are no uniform procedures in place for recognition. Particularly powerful here is the formulation in Argentinian law, where a gender identity is completely based on self-recognition - it is not necessary for the individual to prove that a surgical procedure or hormonal therapy had taken place.

This analysis largely pertains to individuals transitioning from one gender to another; what of third gender as a separate identity? Here the Court makes a strong move to articulate legal rights for individuals who don't fall within the male/female binary, thus making a distinct shift from most pre-existing comparative law.

Before we get to the constitutional harms that the Court finds, it's worth mentioning the important move made in Para 53 of the judgment: Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions eg: Articles 14, 15, 19 and 21 of the Constitution to enlarge the meaning and content thereof and to promote the object of constitutional guarantee. Principles discussed hereinbefore on TGs and the International Conventions, including Yogyakarta principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognized and followed.

This is the kind of declaration that gives the different marginalized communities a virtual roadmap of judicially enforceable rights in the future. For this judgment, it aids the Court in locating in Article 14 the right to hijras/ transgender persons to legal protection in all spheres of state activity and finding gender identity as a prohibited ground of discrimination under Articles 15 and 16. "Constitution makers, it can be gathered", they note, "gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders", thus taking forward the sex stereotyping jurisprudence inaugurated in Anuj Garg v. Union of India. The Court finds transgenders to be a socially and educationally backward class envisaged under Article 15(4) and also entitled to reservation in matters of appointment in Article 16(4) - a powerful statement to be sure, but given the way the judgment slips in and out of different notions of transgender identity, it also points to an administrative nightmare without further clarification.

Their Article 19 (1) (a) argument locates gender identity as protected expression under the Constitution. In the process, as Gautam Bhatia notes at http://indconlawphil.wordpress.com/2014/04/15/nalsa-v-uoi-the-supreme-court-on-transsexuals-and-the-future-of-koushal-v-naz/, it proves fatal to Koushal's argument which was built on a false distinction between sexual acts and sexuality identity so as to keep from identifying homosexuals as a class and consequently the protection of Article 14 and 15. Finally, they locate gender identity in a dignity analysis under Article 21 - "Gender ... constitutes the core of one's sense of being as well as an integral part of a person's identity".

As I mentioned, it is not merely the legal illogic of Koushal which this judgment militates against, but also its apathy. From Justice Radhakrishnan's opening lines talking about the moral failure of society's unwillingness to contain or embrace different gender identities and expressions, down to Justice Sikhri's cognizance of the painful process of transitioning from one gender to another, this is a text that is shot through with empathy.

Ultimately, the Court issues a set of 9 directions. Besides the ones already mentioned in the judgment, these range from the specific (directions to operate separate HIV centres) to the broad (proper measures to provide medical care to transgenders in hospitals ) to the vague (measures to regain their respect and place in the society which once they enjoyed in our cultural and social life). While the directions risk being simultaneously overbroad and underinclusive, they are reined in by the significant paragraph that follows afterward.

In 2013, the Ministry of Social Justice and Empowerment constituted an Expert Committee to provide an in-depth study of the problems faced by the transgender community and suggest governmental measures. The Committee Report provides a voluminous set of recommendations for addressing transgender discrimination at various levels which the judgment itself does not specifically touch upon. What the judgment does do however, is ask for the recommendations themselves to be examined based on the legal declarations it makes, and implemented within six months. The breadth of the judgment's declarations then will potentially be a useful aid in meaningfully implementing these recommendations.

Saturday, March 29, 2014

Religion and Caste in the Constituent Assembly

In the current issue of EPW, Rowena Robinson in an article titled, "Minority Rights vs Caste Claims: Indian Christians and the Predicament of Law" turns to the Constituent Assembly debates to explore how dalit Christians (and other religious minoriites) were excluded from the system of reservations. Her work adds another layer to a rich and growing body of work by scholars like Rochana Bajpai, Iqbal Ansari and Shefali Jha who have looked at the history and theory of group rights in India.

Dalit Christians have been agitating for scheduled caste status that will bring them on par with Hindu, Sikh, and Buddhist dalits. Why was this claim not made when the Constitution was being framed? An exploration of the Constituent Assembly debates attempts to understand whether Christian castes were discussed and how fundamental religious liberties, which included crucial educational rights, were given importance over caste claims by the elite Christian representatives in the assembly. It draws a distinction between community rights and claims on the state. The implications of the cluster of rights known as "minority rights" are disentangled and the paper argues that the discriminatory clause in the Scheduled Castes Order of 1950 is part of the problem faced by dalit Christians. There is also a clash between the different kinds of entitlements at issue, which must be acknowledged to harmonise the justice of the state with fairness within the community.

Friday, March 28, 2014

Standard Indian Legal Citation Launches

Standard Indian Legal Citation (SILC) launched earlier this week at a number of law schools in India. SILC is a legal citation system created by some recent law graduates and law students for the Indian context. It's free and much shorter than the Blue Book. The above link is to SILC's website where you can download a beta version of the manual. I know they are actively looking for feedback on how to improve the citation system and to get more law schools, law faculty, and law students involved.

Having both taught in Indian law schools and worked at the Indian Supreme Court I can vouch for the myriad of ways that citation is done, or not done, in the country. Sometimes you can find the source quickly from a cite, sometimes you are left scratching your head. Other times you just wish there was a cite. I believe SILC is first targeting law schools to introduce standardized citation, but I hope their efforts move shortly to the courts. Although I am not nit-picky about citation I have found poor citation often indicates that arguments are not rigorously supported. I think clarity on how to cite would not only save the reader time, but also the writer as it's often unclear how one is suppose to cite when one is writing a legal document in India leaving one hoping that they have adopted the correct system (Blue Book, OSCOLA, what you just invented, etc.) I also very much support SILC's commitment to keep the manual free and available on the web. When so many students - and lawyers - across India don't have money to spend on law books the last thing they want to be spending money on is a citation manual. A recent article by Bar and Bench on SILC can be found here.

Justice in "Open" Courts

Guest Post by Abhinav Sekhri

I recently happened to visit the Supreme Court of India where I required a “proximity-pass” for gaining entry to the building. Coming from the Bombay High Court where entry is free, I was rather unprepared for what awaited. It took nearly two hours to obtain that pass for something that required fifteen minutes. Seeing greatly harrowed litigants around me miss their cases due to the slow-paced queue was disheartening and alarming. The system poses serious doubts over the notion of administering justice in open courts that legal systems cling to. This short comment is an attempt to put the same into greater perspective.

The Current System
Up until 2007, only ordinary security checks were in place with no special restrictions imposed for gaining entry to the Court. A slew of orders came in the wake of bomb blasts in court premises across Uttar Pradesh in 2007. Throughout orders issued since late 2007, the official reason behind these measures was ensuring greater security. The Supreme Court was declared a “high security zone”. Accordingly, one has to undergo two full checks before entering the Court premises, and one frisk-search just outside court-halls.
Since 2009, litigants wishing to gain entry must fill a form to get a photo-id proximity pass; your name, occupation, mobile number and address primarily. Passes are only issued for visiting a particular court for your particular case. These must be stamped by an Advocate on Record (not your ordinary advocate), and submitted along with copies of a designated photo-id. All this data is keyed in by persons behind a counter, who takes your photograph, and hands over the pass. If you visit Court often, next time just tell your mobile number to help retrieve the details. From personal experience, I can vouch for this working till a year from the previous visit.

Unwanted Consequences
The veritable golden-ticket for the Supreme Court creates several consequences that are not often considered. The most alarming is refusing entry to any interested member of the public who does not have matters in Court. There was a pass system in place before the photo-id at the Court, but without such a complete restriction. Today, it is nearly impossible for one to hear matters of immense national importance being argued by some of the sharpest minds in our country. In the absence of audio-recording arguments, this is indeed tragic.
This sacrifice of the fundamental tenet of “open justice” is foreboding in a democracy for two reasons. First, in a country where the law is notoriously inaccessible, such measures deepen the persisting non-engagement between the law and common public. Especially, those “ghosts” in our system: the have-nots living without any government-issued identity. These measures thus not only exclude non-litigants, but also poorer ones. There is also the issue of accountability. Though the press covers the Court it is no substitute for people being able to see what exactly goes on inside courtrooms.

Second, blithely restricting access to the highest court of law owing to terror threats is doing exactly what terror ideologues desire. Courts are supposed to ensure a society runs on the rule of law, not ratify measures taken under terror from a gunman. Today when the sceptre of terror-threats looms larger than any real terrorist activity, it is difficult to question the value of “security” as an object. I do not object to imposing restrictions on this basis, agreeing with those who argue that security, or a sense of it, is valuable. However, one must question the nexus between the measures taken and the stated object. Is there a presumption that someone without a matter in Court would not be a terror threat, which justifies such a complete restriction?

Comparing Countries
Continuing with the issue of a reasonable nexus of the proximity pass for ensuring security within the Court, we must look at the measure itself. Issuing these passes has little or nothing to do with protecting the “high security zone” from the professed terror threats. Persons are in any case subject to body-searches and a scan of their belongings before entering Court. If the only additional value in the pass is that it records photographs – why not place cameras at entry gates?

India is by no means unique in facing with terror threats. The USA and England have suffered particularly gravely. However, consider the restrictions for entry to their Apex Court. Both do not impose such a clear prohibition on entry of non-litigants. In fact, they encouragevisitors to the Court, as can be gleaned by a quick look at their websites. Having been to the UK Supreme Court, I can confirm they do not require identification proof to allow entry (at least till 2012). They do however have effective court-management systems. Thus if designated spaces for visitors are fully occupied in a court-hall, then one cannot enter the same.

Daunting Prospect
Recently, the Supreme Court has been hearing arguments on the constitutionality of the “Aadhar” scheme deployed by the Government. One of the fundamental grounds of challenge is the retention of personal data by the government without any statutory backing. If one considers the apparently innocent proximity-pass, is it very different?

The pass does not take biometric information. However, it takes our name, address, contact number, occupation and photograph. Further, we know this data is being stored, somewhere. This retention is not backed by either the statute of the Supreme Court, nor the 1966 Rules. Even the administrative orders do not mention anything about storing that data. When one considers the number of litigants that frequent the Court, the thought of all that information being misused is a daunting prospect indeed.

Concluding Thoughts

Perhaps the first response one might address against these thoughts is their symbolic indulgence. What is an issue of entry into the Supreme Court beyond a symbolic one of other issues? Most certainly it is so, but that does not reduce its importance. The fact that the Apex Court is actively propagating exceptions to the rule of law it must promote is disheartening and problematic. Further, the absence of any murmur of dissent against the systematic exclusion of the majority of Indians from their Supreme Court is a damaging indictment of the level of interaction between our public and courts. Perhaps someday, we will have the pleasure of listening to Mr FaliNarimanor other legal doyens argue, for no other or better reason than us wanting to. 

(Abhinav is a Final Year student at NLSIU, Bangalore. He would like to thank Ms. Deekshitha Ganesan for her help in finding the relevant information for this piece.) 

Wednesday, March 26, 2014

Law Clerks, the Supreme Court, and Harvard


A draft of a paper I have been working on was recently posted on SSRN as part of the Harvard Law School Program on the Legal Profession Research Paper Series. The paper is titled: “From Hyderabad to Harvard: How U.S. Law Schools Make Clerking on India’s Supreme Court Worthwhile”. In it, after interviewing over two dozen law clerks who have served on the court, I study the institution of the law clerkship on the Supreme Court of India. The paper’s central argument is that though doing a clerkship lacks prestige in India’s legal profession, it is primarily pursued by those interested in getting an LL.M. at a U.S. law school – ironically not necessarily by those who are even interested in getting into litigation. I suggest that this is because admissions departments at American law schools are unable to figure out the cultural nuances of the legal profession in other countries, and so they assess international LLM applicants by looking for credentials in them that one would ordinarily expect to find in the model American law student. How is the typical U.S. law school’s admissions department supposed to know, for example, that working for one of India’s “Grand Advocates” counts for more in the legal profession than clerking with the Chief Justice of India? Law clerks typically don’t get signing bonuses in India, and the year spent as a law clerk is usually not counted by law firms. By contrast, a lawyer is forever identified with the “Grand Advocate” s/he has worked with – for example, Seervai, Bhagwati and Palkhivala were always identified as belonging to the chambers of Sir Jamshedji Kanga. The “Grand Advocates” of the Supreme Court have been around on the court for longer than most of the court’s judges, who usually serve short 5-7 year terms in office. The paper is still a work in progress, and comments are welcome.

Saturday, March 22, 2014

Arvind Elangovan on Non-Nationalist Readings of India's Constitution

Arvind Elangovan, the biographer of BN Rau, has written an interesting paper. He summarizes the new directions in Indian constitutional history studies after Granville Austin. Arvind says we must separate the histories of constitutionalism from those of nationalism. He calls for a "non-nationalist approach" to understanding India's constitutional history.

Friday, March 21, 2014

Reflections on the Koushal Verdict -- CPR Seminar

Earlier this year, the Center for Policy Research organized a seminar on the Supreme Court's recent Koushal decision. The seminar featured lawyers who appeared in the case. Excerpts are available here, here, and here.

Wednesday, March 19, 2014

Oxford University statement 19.3.14: Oxford University Society India Moot competition

Oxford University has been highly concerned to learn of complaints raised by participants in the Moot competition, which was not organised by the University but by the Oxford University Society India alumni group. We are ourselves urgently investigating competitors’ concerns with the leadership of the alumni society. We are asking them to explain what went on at the proceedings, and to respond to specific complaints.
The Oxford University Society India alumni group first proposed to the University in summer 2013 that it should organise a Moot competition in India. At the time, the University welcomed this initiative, and members of the Law Faculty discussed the problem to be set with the alumni group, and offered to provide one or more judges for the competition. The Faculty invited Indian law students to apply to the group to participate in the competition.
The planning and organisation of the competition itself was conducted by Oxford University Society India alumni group. The Law Faculty’s offer to provide judges for the contest was not taken up. On February 15, the alumni group notified the Law Faculty that they did not wish to continue any sort of association with the Law Faculty. The group subsequently did not respond to the University’s requests for information concerning preparations for the Moot. No members of the Oxford Law Faculty attended the event, or were involved in the arrangements made for competitors, in the conduct of the competition, or its judging. These were all the responsibility of the alumni group.
The University of Oxford is always happy to encourage and support events run by alumni groups. However, responsibility for event organisation rests with the groups themselves. These are autonomous, independently-financed groups run by volunteers, who undertake to the University to conduct themselves to a high standard and to keep us informed of the events they organise. The University can offer advice on the running of events but in this case, the India alumni group chose to make all the arrangements without such advice.  
It is important to us that anyone attending an Oxford-related event should find it enjoyable and of high quality. We always welcome feedback about such events, including those organised by our alumni groups. Where it is established that events have clearly fallen short of the high standards we expect, we will investigate criticism and complaints and take up relevant issues with the organising group. In the case of this Moot competition, we are disconnecting any links to the Oxford University Society India from the University’s website until the full circumstances are established.

Thursday, March 13, 2014

More on 145(3) and a Perplexing Proviso

As Venkatesan has pointed out debates over what Article 145(3) means is on the Court’s mind these days, and for good reason – the Court has had a confused practice of implementing, if not interpreting, the Article. Critics have claimed that the resulting lack of five judge benches has hurt the quality and consistency of its jurisprudence. As a reminder, the first part of 145(3) states:
“The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:”

In earlier posts I noted that it was clear the drafters understood this article to mean that all questions involving the interpretation of the Constitution should be heard by five or more judges. “A substantial question” applied in any case in which constitutional interpretation was a substantial issue, not necessarily a case of particular constitutional or national importance. As I note in another post, this interpretation is also supported by an intra-textual reading of 145(3) with 132 and 228, which use the same substantial question phraseology (or 133 or 139A which use the language of “substantial questions of general importance” – which seems to indicate a higher threshold than 145(3)).

Although I’ve been thinking a lot about 145(3) lately, to be honest I’ve been confused about what it’s proviso means. In earlier posts, I’ve discussed a bit about what the drafters seemed to think of it – if there was a case being heard by a smaller bench and an issue of constitutional law came up then it should be heard by five or more judges. So what’s the problem? Let’s read the proviso of 145(3) again:

“Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.”

Does it strike anyone else as strange that the proviso particularly excludes 132 from its content? 132 after all is certified constitutional appeals. Wouldn’t 132 appeals be exactly the type of situation where you would want a five judge bench? Why exclude them?

Well, this is my hunch. The drafters assumed all 132 certified appeals would be heard by five judge benches. That’s why they had the carve out –  no need to refer questions in the case to five judges if the case was already being heard by five judges. 

At least, this is the best way I can make sense of the proviso. This is also in general supported by the early practice of the Court.  As B Sen notes in “The Supreme Court Bench and Bar” in Supreme But Not Infallible: “In the early fifties, the Supreme Court sat as a full court in all constitutional cases and in not more than two divisions where other matters were concerned.” (p. 440) He even notes, while discussing Justice Jagannadhadas, “I remember on one occasion, when sitting with four other judges, he prevailed in granting special leave even though the rest of his colleagues were opposed to it. The appeal was eventually allowed.” (448) What's notable about this remembrance is that it seems to indicate that five judges were even hearing SLP admission matters in the Court’s early years.

On its face, and given what we can figure out from early court practice, the best explanation for the proviso excluding 132 was that it was written in an environment where it was understood five judge benches would be common for many cases and mandatory for 132 appeals.

Does the historical record reveal anything else? If one goes back to the February 1948 Constitution one finds the proviso as we know it today wasn’t even there at all. Instead, there was a completely different, and quite telling, proviso, which read:
“Provided that it shall be open to every judge to sit for the said purposes unless owing to illness, personal interest or other sufficient cause he is unable to do so.”

There is an asterisk, inserted by the drafting committee, next to the Article which helps explain this different proviso: “In the Supreme Court of the United States of America all the judges of the court are entitled to participate in the hearing of every matter, and the court never sits in divisions. The judges of that court attach the greatest importance to this practice. The committee is of the opinion that this practice should be followed in India at least in two classes of cases, namely, those which involve questions of interpretation of the Constitution and those which are referred to the Supreme Court for opinion by the President.” (Shiva Rao, The Framing of India's Constitution Vol. 3 p. 560-61) The drafting committee seems to be drawing on BN Rau's famous meeting with Justice Frankfurter where the American Justice warned him about having Supreme Courts sit in panels (he thought all judges should take responsibility for all decisions).

In October 1948, based on feedback from the public, the Drafting Committee recommended changing this proviso to make clear that judges not only could, but “that it shall be the duty of every judge to sit” on benches where constitutional matters are being heard. (The Framing of India's Constitution Vol. 4 p. 160) They explained that this proviso “has a very important object: to prevent the court being packed by the exclusion of certain judges.” (p. 158) (Note this concern about bench packing has been longstanding and continues to this day. I have written about this here).

So the idea in the draft Constitution was that all judges should be hearing cases of constitutional interpretation if they were able to do so (or at least five should). Of course, back then they only envisioned eight judges on the Court.

The proviso stayed in its original February 1948 draft form until the Constituent Assembly debates when on June 6th, 1949 the issue arose. Shri T. T. Krishnamachari moved the amendment that the Drafting Committee had recommended in October 1948. However, before it could be passed Alladi Krishnaswami Ayyar proposed a completely alternative proviso:
“Provided that where the Court hearing an appeal under article [133] of this Constitution consists of less than five judges and in the course of the hearing of the appeal the court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal such court shall refer the question to a court constituted under this clause for opinion and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.” (Note: I changed the article number to match today’s constitution)
He offered no criticism of the original proviso, simply a justification for why this proviso, which looks much more like the one we have today, should be added. Without any explanation T. T. Krishnamachari went along, the old proviso ensuring the entire Court heard constitutional matters was dropped, and this new one added.

You might notice that the proviso moved by Ayyar (and that was adopted) is differently phrased (and also has a different meaning) than the one finally adopted in today’s Constitution. Strangely, nowhere in the debates can I find this change in phrasing adopted by the Constituent Assembly. I really have no explanation for this. (Perhaps the debates didn’t record everything?)

This post was a bit of a diversion from the central debate over 145(3), but I do think it adds to the historical understanding of what the role of 145(3) was envisioned to be. Again, as I have mentioned in different posts,  just because the drafters thought the Constitution should be interpreted one way that doesn’t mean it should be interpreted that way today. That said, since the drafters had a unified vision of what different articles were suppose to mean (i.e. 145(3), 132, 228, etc.) if today we change the interpretation of 145(3) this also impacts other articles. A unified understanding of constitutional text even impacts the reading of the two different parts of 145(3) itself. The reason that the proviso of 145(3) was nonsensical to me for so long was because court practice has moved so far away. It’s only once I realized that all 132 matters used to be heard by five judge benches, and it was assumed they always would be, that the proviso can be read in a sensible manner. Or at least that’s my understanding. 

Wednesday, March 12, 2014

Substantial Question of Law

Clause (3) of Article 145 says the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.  The phrase 'substantial question of law as to the interpretation of this Constitution'  has evinced a lively discussion on our blog a few days ago.  This morning, the question engaged the attention of the Constitution Bench in the case of Pramati Educational and Cultural Trust v. UOI.

The presiding Judge, Justice R.M.Lodha, expressed his view that any challenge to Constitutional provisions would involve a substantial question of law.  Justice A.K.Patnaik added that the Court has to form an opinion on whether substantial question has arisen in a given case.  Justice Lodha was of the view that two or three Judges cannot decide the validity of Constitutional amendments, and that there cannot be a more substantial question than the interpretation of a Constitutional provision.

The arguing senior counsel, T.R.Andhyarujina, who was defending Article 21A guaranteeing the Right to Education, submitted that all Constitutional questions do not involve substantial questions.  However, he added that the question of basic structure would involve a substantial question.

The discussion on what appears as an interesting question, however, was brief, as the Court moved on to the other aspects of the case before it.




Tuesday, March 04, 2014

Comparative Constitutional Law in Asia

To complement a recent research handbook on Comparative Constitutional Law published in 2011 (here), Rosalind Dixon and Tom Ginsburg have put together a research handbook on Comparative Constitutional Law in Asia (details here) which will be published next month. The book includes contributions by a range of scholars. Justice Kate O'Regan (South African Constitutional Court) and I have authored the chapter on Equality in Asia.

Saturday, March 01, 2014

Call for Papers for "Left" in the Dark? Postcolonial Conversations on Law, Neoliberalism, and Queer-Feminist Futures

Call for Papers for  "LEFT" IN THE DARK? POSTCOLONIAL CONVERSATIONS ON LAW, NEOLIBERALISM AND QUEER-FEMINIST FUTURES , October 15-18, 2014 by Jindal Global Law School.

Janet Halley, Royall Professor of Law, Harvard Law School, will be the keynote speaker at the event.

“Left” in the Dark? is being organised in continuation of the project inaugurated by the Jindal Global Law Review‘s (JGLR) special double issue on ‘Law, Culture and Queer Politics in Neoliberal Times’ which was published in two parts in August 2012 and November 2013. All articles from the special issue are downloadable for free at the links above.The special double issue was edited by Oishik Sircar and Dipika Jain, who are the conveners of the conference.

Organisers: Centre for Health, Law, and Ethics and the Collaborative Research Programme on Law, Culture and Postcoloniality, through the Global Justice Programme, Jindal Global Law School, O.P. Jindal Global University

The conference will be organised over four days from October 15-18, 2014 at the campus of the Jindal Global Law School in Sonipat and venues in New Delhi. On the first two days, there will be a research workshop themed ‘Doing Law Differently: The Possibilities, Perils and Pleasures of Critical Legal Scholarship’, for doctoral scholars and early career academics. The workshop will be an opportunity to get detailed feedback from established scholars and peers on works-in-progress and also plan an innovative publication programme with the participants. The subsequent two days will consist of paper presentations, roundtables, and performances. For more information click here.

Thursday, February 27, 2014

Intratextualism and the Indian Constitution

In an earlier post I began to probe the meaning of Article 145(3) of the Indian Constitution. Article 145(3), which I will quote at length for reasons that hopefully will soon become clear, states that: "The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion."

In the earlier post I was trying to start to get at the root of what "a substantial question of law as to the interpretation of the Constitution" meant since many claim the Supreme Court hears far too few five judge or larger "constitution" benches with repercussions for both the quality and consistency of the Court's jurisprudence. In that post I tried to show that the founders clearly thought that a "substantial question" was not a major question, or a novel question, of constitutional law, but simply a case that turned on a question of constitutional law - i.e. constitutional law was substantial to the case being heard, not substantial in any other sense. This is radically different than how it is interpreted in practice today. I was clear in the post that just because the founders thought something didn't mean that was how it had to be interpreted. I left for another day an examination of relevant caselaw (of which there is almost none on 145(3), but of which there might be some of analogous relevance) and thinking about what a good policy might be for when constitution benches should be constituted.

I do hope to get to these issues in a later post, but on that post a conversation ensued that I think lead to a helpful line of reasoning (and I thank the commentator). The question that was indirectly raised was how should we choose to interpret different parts of the Indian constitution that use the same words or phrases? Akhil Amar has a famous law review article on what he calls intratextualism relating to the US Constitution. He takes intratextualism to the extreme in ways I won't engage with here, but he basically claims that we should interpret a Constitution as a complete text where the meaning of words in one part of the text can help explain the meaning of words in another part. For our purposes what is interesting is that the phrase "A substantial question of law as to the interpretation of this Constitution" is used in two other places in the Indian Constitution besides 145(3).  

Article 132, for certified constitutional appeals, states: “An appeal shall lie to the Supreme Court from any judgment, decree, or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies . . . that the case involves a substantial question of law as to the interpretation of this Constitution.

Later in the Constitution Article 228 states: “If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case it shall withdraw the case and may –

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment."

These three articles are instrumental in directing the judicial system how to decide questions of constitutional law. Should we interpret the "substantial question" phrase the same in each article? In actual practice, the judicial system today treats each situation quite differently. 228 is basically interpreted as requiring any matter that turns on a constitutional question be heard by a High Court, not the district court. Meanwhile, 132 (certification) is interpreted much more narrowly, while 145(3) (the creation of constitution benches at the Supreme Court) is interpreted narrower still. Yet, the relevant language is identical in each article. If we turn to the Constituent Assembly debates we see that the founders thought that the Constitution should be interpreted as a whole.

Here's Ambedkar commenting on how Article 228 is essentially trying to do the same thing as Article 145(3), but in a different context: "My first submission is this, that in making this amendment to article [228] which I have moved this morning we are doing no more than carrying out the substance of the proviso to clause (3) of article [145] contained in amendment No. 42.  Here also what we say is this : that the High Court, if satisfied, may take the case to itself, decide the issue on constitutional law and send back the case to the subordinate Judge for the disposal of other issues involving the interpretation of ordinary law made by Parliament. I do not think we are making anything new, novel, strange or extraordinary as compared to what we have done with regard to the Supreme Court. Therefore my submission is this that if we accept, as we have accepted, the proviso to clause (3) of article [145], the House cannot be making any very grave mistake or any very grave departure." Note: I changed the number of the articles in the CAD to the numbering in today's constitution to reduce confusion. 

Ambedkar seems to think that in both the case of 145(3) and 228 cases turning on a question of constitutional law should be sent to either the High Court or a five judge bench where the case can be decided in full or on just the issue of constitutional law and then sent back.

It makes sense that the founders saw the Constitution as a unified document with consistent meanings throughout. However, should this be the stance taken today? The Indian Constitution is incredibly long. This is the only repetition of a phrase that I have stumbled across with so much potential consequence for interpretation, but I am sure there are others. Is it realistic to try to harmonize all these instances or better to let the Court interpret different passages of the Constitution as needed to suit the situation? Is this the only place where harmonizing interpretation of a phrase/word would have a major impact on interpretation or are there others? Certainly, if we do think that there should be consistency of meaning throughout the document than the phrase "A substantial question of law as to the interpretation of this Constitution" takes on even more importance since it appears in the three articles that, perhaps more than any others, direct the judiciary on how to go about interpreting questions of constitutional law.   

Wednesday, February 26, 2014

The Right to Adopt

The Supreme Court of India in its recent decision in the Shabnam Hashmi case took another step towards the harmonization of family law in India by holding Muslims too could adopt under the Juvenile Justice Act. The decision was clearly a product of very cleverly crafted legal strategy which would allow adoption by Muslims and Christians, without raising the UCC debate. The decision has been celebrated for recognizing rights of both parents and children.

The decision is a curious combination of judicial activism and self restraint. Prof Upendra Baxi in a recent editorial notes what the decision failed to do, namely recognize the right to adoption as an integral part of the right to life in Article 21. Prof Baxi castigates this incongruous judicial self restraint and failiure to meet obligations under the UN Convention on the Rights of a Child by asking "How long will Indian Muslim children have to wait till they can rightfully be adopted by other pious Muslims"?. However, as he himself notes, the court while rejecting calls for an UCC also doesn't heed the arguments made by the All India Muslim Personal Law Board. Baxi argues for a more determined robust engagement with "social action litigation" rather than the more cautious managerialist approach it seems to be adopting. 

Telangana and Indian Federalism

Arun Sagar has an outstanding piece here on Telangana and Indian Federalism.

Tuesday, February 25, 2014

New Policy on Pre-Legislative Scrutiny of Bills

This blog has previously discussed the issue of pre-legislative scrutiny (here, here and here). On the 10th of January 2014 the Committee of Secretaries approved a policy that requires all Ministries and Departments of the Central Government to put the proposals for new Bills and amendments to existing laws on their websites and invite comments and views from the people before finalising them. Venkatesh Nayak of the CHRI writes:


The new policy requires special efforts to be made to consult with people in general apart from talking to special interest groups. A 30-day period must be set aside for this purpose. The Law Ministry gets to vet the Bill only after the nodal department/ministry completes the consultations and makes changes to the draft legislation (if necessary). A compilation of people's views received must be attached to the Cabinet Note accompanying the draft Bill which is sent to the Union Cabinet for approval to be tabled in Parliament. These views must also be shared with the Department-related Parliamentary Standing Committee when the Bill is referred to it for detailed consideration. The draft Bill must be accompanied with a simplified version along with financial implications of the proposed law as well as an assessment of the likely impact of the new law if approved by Parliament. This is necessary to enable people to understand the legislative proposals and their likely impact better without having to struggle through the difficult legalese in which the provisions are drafted. The requirement of public consultation may be dispensed with in special cases but reasons must be appended to the Cabinet note for such decisions. However the policy provides for an escape route where a department may get away without disclosing the text of the Bill but only a summary and objectives of the proposed legislation. This discretion will have to be ring-fenced through a more detailed protocol for pre-legislative consultation which will specify the narrow list of circumstances in which disclosure of the draft Bill may be dispensed with.

This is a timely acceptance of a longstanding demand of civil society actors that people be consulted with before laws are made. This way people will have a greater role in shaping the law. The Whistleblowers Protection Bill was passed by the Rajya Sabha on the last day of Parliament's last session (21 Feb. 2014) after a discussion that lasted barely an hour. The pre-legislative consultation policy will help open up opportunities for the people to directly participate in the process of lawmaking and over a longer period of time. CHRI, the National Campaign for People's Right to Information and several other civil society actors, academics and mediapersons have been demanding that such a pre-legislative consultation policy to be put in place for quite some time now. The National Advisory Council had also recommended such a policy to the Government a couple of years ago.

However being only a policy of the executive, I have my doubts whether it will be enforceable in a court of law. In order to make it enforceable it could be incorporated in the General Clauses Act, 1897 which provides for a procedure for consulting people on draft Rules made under any enactment (see 2nd attachment containing this argument and some details of pre-legislative consultation processes in the UK and Canada). This way people can move courts if the draft legislative proposals are not placed in the public domain. 

Further, this policy does not go far enough. After the process of consultation is over people will not get to know in which form the Bill will be presented to the Union Cabinet for approval to be tabled in Parliament. Conventional practices of maintaining confidentiality of a draft Bill until it is tabled in Parliament under the pretext that it becomes the property of Parliament is an obsolete argument. No clear purpose is served in keeping a draft legislation secret for a few days before it is tabled in Parliament, unless it is a Money Bill. Perhaps the Money Bill (such as a budget) may have to be kept secret until it is tabled in Parliament to prevent unscrupulous businessmen from profiteering unethically. There does not seem to be any excuse for keeping other draft legislation secret as it will become public soon after it is tabled in Parliament. If people know what is in the draft Bill approved by the Cabinet, they will have more time to contact their representatives in Parliament to share their views with them on the Bill and demand changes. Experience has shown that there is many a slip between the cup and lip. So ideas received in the course of public consultation may not find mention in the final version of the draft Bill tabled in Parliament. So it is necessary to remove the veil of secrecy form the lawmaking process except in the context of Money Bills.

Nevertheless this is an important step towards implementing Section 4(1)(c) of the Right to Information Act (RTI Act) which requires every public authority to make all facts and figures public while formulating important policies or decisions.

The Making of S295, IPC

Neeti Nair, who teaches history at Virginia, has a superb piece in the Indian Economic & Social History Review on the making of Section 295A of the Indian Penal Code, a provision recently in much news because of the Doniger controversy. The entire article is available here. A piece in the Hindu today covers the same topic with passages that are eerily similar to Nair's piece; available here.

Monday, February 24, 2014

Monday round-up


* ECI adds Part VIII on Election Manifestos to the Model Code of Conduct, after discussion with political parties.

* The Hindu calls for disincentives against disruption in Parliament. The outgoing Lok Sabha passed 177 of 326 Bills.  248 and 297 Bills were enacted by 14 and 13th Lok Sabhas respectively.  The average number of days it met in a year has come down from 127 to 71.

*Faisal Devji writes in The Hindu that the laws that religious groups wish to enforce against literary and artistic works they consider offensive are colonial in origin, and presuppose the existence of an alien society driven by primordial identities. Besides, he writes that conflicts over free expression in India are not metaphysical battles waged between “religion” and “secularism,” but instead debates internal to the latter.  In Business Line, Ashok R.Chandran  has an interesting piece saying Penguin must be complimented for saving Doniger's book ahead of a Court order as others could now buy the licence to publish from the copyright owner, that is, Doniger herself, and continue the legal battle. 
*Shanti Bhushan on why AAP is the only hope.
*Anirudha Nagar  of CHRI admires Centre's decision to adopt pre-legislative consultation, but adds it could profit by learning from Kerala's example.

*Ecologist Madhav Gadgil says his report on Western Ghats is being misinterpreted by everyone.
*Sunita Narain laments Economic Survey's silence on forests
*Rajeev Dhavan has a piece in Mail Today on the passage of Telengana Bill in Parliament, suggests Babulal case (1959) (making states' consent not mandatory for creating a new State,) was wrongly decided by the Supreme Court.

*Srivastav Krishna  suggests in TOI that the choice between small and big states is more complex than what it appears to be.