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Category: Human Rights (page 1 of 24)

How a CRZ violation is leading to a small revolution in Karnataka

Baad, a village near my village of Kagal in coastal Karnataka, hosts a fair every year at the Shri Kanchika Parameshwari temple. As children, the joy of going to this fair was unparalleled. During the fair, the yakshagana, a folk dance, used to take place in a big field near the temple. Instead of paying to watch this dance, my friends and I used to play a game of dappanduppi with mud stones. These memories remain as fond connections to our childhood.

In 2008, while I was completing the final year of my BA studies, I came to hear that this field had been sold and that a big resort would come up there. Many questions about why the owners would want to sell such a prosperous field, where farmers would grow rice and peanuts during the monsoons and vegetables during the summer months, plagued me.

satellite image of Nayak Hospitalities

Satellite image of the Nayak Hospitalities compound

Nayak Hospitalities (“NH”) was the buyer and as a result of the purchase, farmers’ fields, some public wells, and even a cremation yard, was acquired. Public access to a beach was also blocked. The loss of the wells affected the supply of drinking water to three villages – Baad, Jeshtapura, and Gudeangadi. After NH built a wall of about 15 to 20 metres height around the occupied land, fresh breeze from sea stopped blowing into the village. The villagers, who were also worried about the dangers posed by the crumbling of the wall during the rainy season, complained to the panchayat on two occasions and asked for the height of the compound wall to be reduced, but the panchayat did not take any action.

meeting with the people affected

Meeting with the people affected

As an Enviro-Legal Coordinator with the Centre for Policy Research (CPR)-Namati Environmental Justice Program, my job is to inform people about the law, and work with them to solve the various environment-related problems they face. I had helped conduct training programmes on awareness of the Coastal Regulation Zone Notification, 2011 (“CRZ Notification”) in Baad and surrounding areas. This led to discussions about the violations caused by NH and a decision to work together in collecting information, evidence, and pursuing remedies with the local authorities. Collection of information is central to the way we try to resolve problems. That way, if a similar problem arose in the district, a solution based on this case could be used.

Collection of information

The project had obtained clearance from the Ministry of Environment, Forests and Climate Change in December, 2010. Under this letter, permission had been granted to construct the resort on survey numbers 4 to 9, 11 to 13, 17, 19 to 21, 23, and 26 of Baad and survey numbers 14, 16, 18, and 19 of Gudeangadi. It also contained 12 specific conditions and 14 general ones but we observed that many of them had not been complied with.

Nayak Hospitalities compound area

Nayak Hospitalities compound area

  1. Construction on land in excess of permission given: The project had permission to construct on 5.26 ha, but ended up constructing on 9.67 ha. The land includes public property such as government wells, a cremation yard, a temple’s field, and also access to the beach.
  2. Construction in No Development Zone: Under the CRZ Notification, no new construction is allowed in the zone known as CRZ-III. However, the compound wall has been constructed in the 0-200m No Development Zone of CRZ-III.
  3. Access restricted: The lack of access to the three government wells located on NH’s property is leading to shortage of drinking water for the villagers living in the area.
  4. Non-permissible installation: The installation of a pumpset in the NDZ of CRZ-III is not a permissible activity. However, pumpsets have been installed on the NH site. This has reduced ground water in the region.

Advocating with authorities

I discussed strategy with the villagers and identified the relevant authorities. A letter was sent to the Regional Director (“RD”) of the Karnataka Coastal Zone Management Authority (KCZMA) office at Karwar. After a site inspection, the RD noted some violations and sent a report to the KCZMA and a notice to the proprietors of NH.

site inspection by regional director envrionment

Site inspection by Regional Director

Since no relief followed, the villagers and I decided to send letters to all relevant authorities including the District Commissioner (“DC”), Executive Officer (“EO”), and the Panchayat Development Officer (“PDO”). Site inspections were carried out and once again, notices were issued against NH. Upon request by the villagers, the panchayat on five separate occasions, gave notice to NH to reduce the height of the compound wall. This too had no effect. Finally, an order by the DC led to a reduction of the height of the wall from 15-20 meters to 6 feet. This was a small victory after two years of hard work.

Not a small victory

The victory was not absolute since the villagers still did not have access to the common land and the government wells. We used provisions in the Karnataka Land Reform Act, 1961, Panchayati Raj Act, 1993, and the Environmental Protection Act, 1986 and wrote letters to the DC, the EO, and the PDO. If any action had been taken pursuant to these letters perhaps a solution might have had been possible. The letters get transferred from one government department to another and my job then becomes to trace the status of the compliant. This is a waste of time, money, and energy.

The NH project is still inconvenient for the villagers in Baad and Gudeangadi and though their problems are not yet fully resolved, there is still hope. Through these two years, there has been immense support from the villagers of Baad and Gudeangad in working together to resolve the problems that they face. They now also have a pretty good understanding of the law and are in a position to seek remedies to their problems in the legal system. By working to get justice in this case, the villagers have also become more aware about the importance of the environment and common resources. This manner of legal empowerment has also helped them solve other small CRZ violations.

 

vinod photo

Vinod Patgar is an Enviro-Legal Co-ordinator with the Centre for Policy Research – Namati Environmental Justice Program.

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[Video] Mathura: The rape that changed India

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Click to watch now

Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.

Her name was Mathura and she was raped by police constables.

She survived and appealed to our courts but did not get justice.

Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.

It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.

Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.

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Soft judicial review, conflicts with other rights, and other problems in the Draft Equality Bill

CLPR_SudhirKrishnaswamyDikshaSanyalAndreasWalter

(Tarun Khaitan, an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College has proposed a draft Equality Bill, 2016 and myLaw has invited some scholars and advocates to comment on it. This is the third response we have published and it is from a team from the Centre for Law and Policy Research. Tarunabh has asked us to convey his gratitude for the comments from Alok and Talha and he has already revised his draft in light of those comments.)

The Draft Equality Bill, 2016 is an ambitious legislative proposal. This Bill aims to advance civil remedies against discrimination by private and public actors on several grounds. It follows a sequence of civil society proposals for a new civil equality law in India like the Bangalore Declaration in 2007 or the Lawyers Collective’s HIV/AIDS Bill 2007. In the last decade, at least two reports by committees established by the Government of India have proposed new initiatives to serve social equality: the Equal Opportunity Commission: What, Why and How? in 2007; the Sachar Report Social, Economic and Educational Status of the Muslim Community of India, 2006. Three new book length works on equality have been published in the last 3 years: Tools of Justice: Non-discrimination and the Indian Constitution by Kalpana Kannabinan; A Theory of Discrimination Law by Tarunabh Khaitan and Unconditional Equality: Gandhi´s Religion of Resistance by Ajay Skaria.

At present, equality law is composed of constitutional rights and a hotchpotch of legislation to provide remedies against different types of discrimination in India. Some legislations provide criminal remedies, like the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 others offer civil remedies, like the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Equal Remuneration Act 1976; a third category adopts a welfare approach like the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. These legislation address certain aspects of equality in a particular sector or for certain specific groups. There has been no overarching equality law that has inbuilt flexibility to respond to the varied aspects of equality.

The draft Bill aims to fill in this lacuna by protecting an open-ended list of characteristics, establishing new concepts such as separation and boycott, relying on the principle of proportionality, and imposing negative and positive duties on public and certain private parties.

Though well-intentioned, the Bill raises several fundamental questions which have constitutional implications. This essay interrogates whether the Bill goes beyond the constitutionally permissible means to achieve the aims of equality. This analysis is organised in two parts: the first is an analysis of the concept of equality that the Bill proposes and the conflict it poses to other rights while the second part deals with the judicial review approach.

Equality and other rights

Expression and association

The material scope of the Bill is wide enough to cover a wide array of parties and relationships hitherto outside the ambit of the law. The protected grounds are also wide, loosely defined, and open ended. For instance, ‘harassment’ covers any communication or conduct related to a protected characteristic or group that creates an “intimidating, hostile or bullying environment”. Section 7(2) also provides that in order to determine what constitutes such an environment, the point of view of a “reasonable person belonging to that protected group” will be taken into account. The politics of who constitutes the “reasonable person” in the protected group might play out adversely to the detriment of the fundamental freedoms we have in the Constitution, especially with regard to freedom of speech and expression. This is because the Indian courts have tended to disregard the demands of liberty and autonomy.

Similarly, the definition of segregation under Section 9, is too broadly phrased. It covers any “overt or implicit abetment, support, encouragement, facilitation of, or use of force, coercion or manipulation” with the intent of preventing a person from “interacting with, relating to, marrying, eating with, living with, socialising with, becoming friends with…” The import of such drafting is that under the current framework of the Bill, families, inter-personal relationships such as friendship, private contractual relationships between individuals are covered under it.

Further, the legal duties are novel and extensive. In contrast to the anti-discrimination duty under Section 12, which applies to only certain categories of persons (employer, landlord, trader, service provider, public authority, and private persons performing public functions), the duty not to engage in aggravated forms of discrimination, under Section 14 which includes boycott, harassment and segregation applies to everybody. Additionally, while there exists a list of exceptions to the anti-discrimination duty under Section 12, the same does not extend to the case of aggravated discrimination. This list of exceptions includes for instance, “any form of expression protected by Article 19 of the Constitution”. In other words, the duty to avoid aggravated discrimination has been already cast wide and without a list of exceptions qualifying the same, can end up conflicting with autonomy and free speech. If interpreted too literally by the courts, this Bill can have detrimental effects on the autonomy of individuals to freely enter into private relations on the basis of contract.

Trade and Business

Another significant issue that arises with this Bill is the way it will pit one right against the other.

This is chiefly due to the broad, unremunerated list of protected characteristics in the Bill. Sections 3 and 4 the Bill defines the meaning of protected characteristics and groups respectively. Even a cursory glance through these two sections will indicate the wide scope and application of the Bill. Besides expressly mentioned protected characteristics, the Bill provides a guideline for the courts to define new characteristics.

The combination of this open-ended list of protected characteristics and the newly introduced concept of indirect discrimination may end up creating legal uncertainty because an excessive burden will be placed on private parties as they may not foresee the consequences of their own conduct when they enact or enforce a neutral measure at their work place. The private individual may face a variety of different remedies as a legal consequence of indirect discrimination including damages. Thus, this might lead to an undue burden on to the individual´s exercise of the fundamental right to trade and business under Article 19(1)(g).

Furthermore, it is doubtful whether the Bill as it currently stands should effectively hand the powers to the courts to curtail or expand the scope of equality as it deems fit. Judicial doctrine on equality in India is underdeveloped. Given the Indian courts’ reluctance to expand the range of protected groups and an established model of executive identification of disadvantaged groups, it is unclear why courts should be given this important task. Judicial institutions, especially in an adversarial system are not well equipped to carry out an assessment of which groups are disadvantaged. In this regard, it may arguably, be a better suggestion for the Equality Commission to promote a data-driven, transparent, identification of protected groups and characteristics. Currently, the only power before the Central Equality Commission under the proposed Bill is to recommend the inclusion of disadvantaged groups under Section 16. This list of disadvantaged groups is only significant for the imposition of a diversification duty under Section 18.

However, the courts are free to expand and limit the interpretation of protected group and characteristics under Section 3 and 4.

Judicial review approach

Proportionality

The Equality Bill, 2016 relies on the doctrine of proportionality on multiple instances. Under Section 5(7)(i) and Section 6(2), proportionality is used as justification for acts which amount to prima facie direct and indirect discrimination respectively. The Bill however, does not provide an independent clause which defines the doctrine of proportionality. If anything, it provides a negative understanding of proportionality under Sections 5(9) and 6(3) when it mentions that a conduct will not be deemed proportionate if there exists other less discriminatory ways of achieving the objective of the Bill. Such an understanding of proportionality falls short of the definition of proportionality which has been adopted by constitutional courts across other jurisdictions. It can therefore be assumed that the Bill relies on the understanding of proportionality which has been adopted by the Indian courts to complement the limited definition provided in the bill.

The Indian courts’ jurisprudence on the doctrine of proportionality is underdeveloped. Abhinav Chandrachud and Soli. J Sorabjee argue that although the Supreme Court had adopted a test of proportionality in Om Kumar v. Union of India, AIR 2000 SC 3689, its later judgements have gone on to reformulate the doctrine of proportionality so as to make it similar to the Wednesbury principles of unreasonableness by adopting the language of “shocking disproportionality” instead of the three-tier test which the doctrine of proportionality prescribes. In the process, even though the courts have used the language of proportionality, they have lost the essence of the doctrine. However, in a recent judgement of the Supreme Court in Modern Dental College v. State of Madhya Pradesh, Civil Appeal No.4060 of 2009, the court correctly interpreted the doctrine, though it failed to apply the same adequately to the case as it did not adjudicate over whether the method adopted was the least harmful method available when compared to the alternatives available. Though this case brings back the doctrine of proportionality as a test for the validity of a statute, it doesn’t address the lack of clarity with regard to what the principle requires in an adjudication context.

In light of the argument above, it becomes necessary to define proportionality in the Bill so as to ensure that the confusion created by the courts regarding the definition if the doctrine does not get inscribed into the Bill. If the doctrine is left undefined as it has been done in the Bill, it would fail to achieve the purpose it is designed to achieve as it operates as an anchor of the judicial approach to the law.

Incompatibility

The Bill effectively establishes a new hierarchy of the Indian legal order which might undermine the Indian constitution. This new hierarchy puts this Bill below the constitution but above every former and future Act of Parliament. It equips the High Court with two novel powers, an interpretation of compatibility and a declaration of incompatibility.

Under this Bill, in Section 26, the High Court has the duty to interpret formerly and subsequently enacted law to be compatible as far as possible with this Bill. This is the first stage, which leads to a new de facto legal hierarchy. In addition to the Constitution, this Bill, if enacted guides the interpretation of other acts. Thus, a claimant may invoke this Bill to challenge an interpretation of another law, which might be incompatible with this Bill. Therefore, this Bill operates as a new standard of validity of all other laws.

Further, another new power given to the High Court under this section is the duty to issue a declaration of incompatibility where a subsequently enacted Act cannot be interpreted in a way which would be compatible with this Bill. Although a declaration of incompatibility has no legal consequence on the validity of the reviewed Act, it amounts to a soft review as it imposes political pressure on Parliament to change the incompatible law.

These two new measures are not novel to persons familiar with public law in the United Kingdom. The key remedies under the Human Rights Act 1998 (“HRA”) are an interpretation of compatibility and a declaration of incompatibility. Although the transfer of legal remedies into other legal system might be beneficial, it should be done with great caution. The HRA and its key measures are seen as a compromise between effective human rights protection and parliamentary sovereignty under an uncodified constitution. This special situation does not apply to the Indian situation. India has a codified constitution under which human rights are protected and fully enforceable by the Supreme Court through hard judicial review. Therefore, there is no need to create an intermediate level of human rights protection that this Bill seeks to do. A higher human rights protection against a legislation may only be achieved under the current legal system by amending the Constitution. This Bill, however, institutes new grounds for judicial review of Acts of Parliament without following the constitutional amendment procedure.

Additionally, this provision also has the powers to upset the principle of federalism under the Constitution. This Bill, by allowing any later act which might include also state legislation to be reviewed under this Bill, impedes upon the law making powers of the states.

Furthermore, there is a risk that the Indian courts will adopt case law of the British courts by interpreting the concept of compatibility. The Indian courts have already a tendency to adopt British principles into Indian law as may be observed in judicial review in administrative law. Therefore, if the Bill draws on a one to one remedy already existing in the British legal system it actually invites the Indian courts to follow their lead by interpreting the remedies in the same way. This blind importation of the case law may even further compromise the current constitutional framework as the British courts constructed the interpretation of compatibility very broadly. All provisions, notwithstanding their wording, may be read down to the extent that it does not compromise the “key features” (Ghaidan v. Godin-Mendoza, [2004] UKHL 30) of that Act. This means, if adopted by the Indian courts, that the hard judicial review under this Bill would apply to almost all provisions of reviewed Acts and effectively amending the hard judicial review under the constitution without following the constitutional amendment procedure.

Conclusion

Even if, the legal issues expressed above are addressed, there remains a concern with an approach to achieving equality through the ordinary civil remedy that relies to heavily on the courts as the key legal institution for enforcement. In a society where access to justice is still beyond the reach of the millions it is questionable whether such an approach would ultimately manage to create a significant, measurable impact in curbing discrimination.

(Sudhir Krishnaswamy, Diksha Sanyal, and Andreas Walter work with the Centre for Law and Policy Research)

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Adversarial litigation may not be effective in fighting discrimination

Talha-Abdul-Rahman(With an anti-discrimination legislation back on the political agenda, Tarun Khaitan, an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College has responded with a draft Equality Bill, 2016. myLaw.net has invited some scholars and advocates to comment on this draft and over the coming weeks, will publish their responses here. The second response is from Talha Abdul Rahman, a Delhi-based advocate. Among other things, he has observed that the traditional adversarial system may significantly limit the effectiveness of litigation under the proposed law.)

In the Constitutional scheme and specifically within the ‘equality framework’, it is possible to locate the rights for every kind of minority or a discriminated class of persons through interpretation. The protection accorded to one class of minority has the potential to become a basis for the protection for another class of minority. Having said that, as exemplified by the partially dissenting opinion of Justice Ruma Pal in the T.M.A. Pai Foundation Case, identifying ‘minority’ in the Indian scenario is not free from legal difficulty. This is in addition to the fact that the Constitution itself promises equality for all (which manifests differently for different classes of persons). In this backdrop, Tarunabh Khaitan’s Equality Bill 2016 (“Bill”), emphasises two key principles: one, that it is important to ensure inter se protection to various categories of minorities (which he defines by referring to ‘Protected Characteristics’) as much as it important to protect the minority from any affront at the hands of the majority, and second, that it is equally important to afford protection of law even to a member of the majority who is need of protection. These two principles, in my view, form the core of the Bill as they recognise the locational vulnerability of an individual at a given time and place. In this piece, I have focussed on provisions dealing with enforcement of the rights and duties under the Bill.

The administration of the provisions of the Equality Bill rests on the shoulders of the Central and State Equality Commissions and the Equality Courts. Broadly, the functioning of Equality Commissions (“EC”) under Section 23 of the Bill are comparable to the functioning of the National Human Rights Commission and other such commissions. For instance, the EC have been entrusted with the power to “investigate complaints with regard to the breach of the diversification duty, monitor enforcement of this Act, review the functioning of this Act and make recommendations for its improvement from time to time, approach any court for the enforcement of this Act, and support aggrieved person seeking legal remedies provided under this Act”. It appears to me that the jurisdiction of EC, even though comparable with other commissions (such as National Commission for Women), is widely and more exhaustively defined.

The adversarial system has limitations

Further, the Equality Courts, in terms of Section 25 of the Bill are ordinary district courts which are to be designated by the State Government as an Equality Court. I anticipate two issues from this approach. First, resort to a full adversarial system for rendering justice to ‘persons aggrieved’ of discrimination and abuse who could be on the fringes of the society is not really the best approach. This is because the adversarial system is heavily loaded with costs, delays, and procedural impediments, and its success largely depends on a prosecution of the claim by the aggrieved person. The issue of discrimination and equality is too serious to be left upon the ability or capability of the aggrieved person, especially because the society as a whole stands to benefit from a successful prosecution. It is relevant that notwithstanding the protection against victimisation under the Bill, an aggrieved person may not be able to fully prosecute the claim for a range of reasons. Therefore, at least under this Bill, a partly inquisitorial system could be adopted. Naturally, such a system would also have to provide for adherence to the principles of natural justice and must also be tweaked to suit our specific Constitutional requirements. Regard may be had to ‘protection officers’ under the Protection of Women from Domestic Violence Act, 2005. Truth stands a better chance of being found in an inquisitorial system if administered by competent persons than when it is left at the mercy of a person who may not be able to match up to the legal might of the oppressor.

The problematic prioritisation of equality claims

Second, the approach to utilise an overburdened court system for full blown litigation is far from desirable. This is because the matter would still have to be adjudicated by (a) existing courts and (b) existing judges who may not necessarily have requisite training in diversity. Further, the obligation upon the State Government to direct the courts to first dispose of equality claims (when in excess of fifty) under the Bill and to give them priority over all pending cases is legally improper. There does not exist sufficient legal justification to accord to equality claims such priority in adjudication to the exclusion of all other cases. The success of an inquisitorial system would also depend on the predilection, quality, and capability of the persons presiding over or assisting the Equality Courts. It is relevant that Section 27 ‘dilutes’ the jurisdiction of the Equality Court by providing that “reliefs available under this Act may also be sought in any legal proceeding before any court affecting the parties to such proceedings, in addition to any other relief that may be sought in such proceedings”. Further, the provisions dealing with the jurisdiction of the High Court, apart from creating a right to appeal, appears to be superfluous as they do nothing more than restate the settled position of law.

Part G of the Bill contemplates the passing of “protection orders” upon an application of the aggrieved persons, by the court of Judicial Magistrate (First Class) or the Metropolitan Magistrate. It is specifically provided in that Part, that “the fact that the case could be pursued, is being pursued, or has been pursued, in civil proceedings before an Equality Court or the High Court shall not be a ground for refusing to issue a protection order.” The reasons for this multiplicity of fora (in addition to overlooking res-judicata) is not entirely clear.

More power to the district courts

Further, as District Court does not have the power to punish for its contempt, they could be so empowered in respect of orders passed under this proposed legislation. It also appears that the prohibition that “the Equality Court shall refuse to take cognizance of any breach that is alleged to have been occasioned by a speech, expression or communication that is prima facie protected under Article 19 of the Constitution” could defeat the working of this Bill. It is one thing to recognise the defence of freedoms under Article 19 being available, and another to bar cognizance of cases.

In summation, enforcement provisions, including those dealing with the creation or conferral of jurisdiction need a re-look. The administration of rights and obligations created under this Bill rests upon the Commission and the Courts. Therefore, the provisions enabling access to courts and their conduct and powers, need to be based on experience in addition to logic.

Talha Abdul Rahman is a Delhi-based advocate.

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Equality Commission may not be sufficiently independent because of problems in appointments process

Alok Prasanna Kumar(With an anti-discrimination legislation back on the political agenda, Tarun Khaitan, an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College has responded with a draft Equality Bill, 2016. myLaw.net has invited some scholars and advocates to comment on this draft and over the coming weeks, will publish their responses here. We are quite excited to publish the first contribution to this debate from Alok Prasanna Kumar of the Vidhi Centre for Legal Policy, who has critiqued the appointment process for the proposed Equality Commission.)

In a nation riven by caste, class, religion, gender, tribal, and linguistic boundaries, (among many, many other lines of division) the idea of equality seems like a distant mirage. The Constitution of India, by stating a commitment to not just formal equality before law but also substantive equality in society, seems like a radical statement of intent, one whose realisation seems impossible on the face of it. Yet, attempts have been made, bit by bit, to remedy the worst of the iniquities and prejudices that mar Indian society but in the larger picture, seem too few and too far between.

In this scenario, Tarun Khaitan’s proposed Equality Bill (“the Bill”) must be seen as a bold attempt at working equality not just into our laws, but into the functioning of the State and its institutions and society as well. It is an effort to not just provide for remedies against violations of equal treatment under the law, but a comprehensive attempt to address discrimination and prejudice that runs deep in society. It is not just a comprehensive anti-discrimination bill, but also one that seeks to foster and further the goal of equality in society.

As others have focused on the intent and mechanism of the main parts of the Bill, I will focus here on the enforcement aspects of the Bill, specifically the Equality Commission (“the EC”). As clear as the norms are in any legislation, the success of the law as a whole will depend on the institutions that are tasked with its implementation. A law must be drafted with an understanding of the structural strengths and weaknesses of the institutions tasked with enforcement and to this end, there is room for improvement in the Bill.

The Bill’s enforcement mechanism has both proactive and reactive elements. This is not so easily split into the functions of the EC and the State Equality Commissions (“the SEC”) on the one hand, and the functions of the Equality Courts. This, I think is a problem with the Bill. For the purposes of this comment, whatever has been said about the Commission also applies to the State Equality Commission unless otherwise indicated.

Constitution of the Equality Commission

The EC has been created along the same lines as the National Human Rights Commission, the National Commission for Scheduled Castes, et al. It consists of a Chairperson and members who are either ex-officio members (or their representatives) or those selected for their commitment and expertise in fulfilling the Bill’s mandate. While there is some diversity mandated in the composition of the Commission, the appointment process leaves much to be desired.

The Bill replicates the appointments process in most other central legislation of having a high-powered committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha (“LOP”), the Chief Justice of India (“CJI”), and the Chairman of the University Grants Commission (“UGC”). While this committee is required to consult a group of authorities while making appointments, this process has two flaws, one minor and one major.

The minor flaw is that as a body of four persons, there is all likelihood of a deadlock. There being no “tie-breaker”, this could lead to a serious hold-up in appointments, especially if the “Government members” (the PM and the Chairperson, UGC) concur and the “non-Government members” (CJI and LOP) don’t. No procedure for decision has been prescribed and one has to assume (in light of the judgment in Centre for Public Interest Litigation v. Union of India) that this means a decision by majority has to be taken. While differences of opinion exist in such committees, there is potential for it to become a deadlock. This can be resolved either by increasing the number of members to five or by giving one person the casting vote in case of a tie.

Appointments process is too centralised

The major flaw is that this replicates the appointment process that has led to the massive centralisation of the appointment process and a consequent delay in appointments. By my rough estimate, no fewer than seven other laws have more or less the same composition of appointment committee. To overburden the same authorities with more and more appointments (between six to ten in this case), involving a detailed consultation procedure, may not make for a swift and efficient appointment process. The fate of the Lokpal and the vacancies in the Central Information Commission are a reflection of this.

The consultation process too has its problems. Of the eleven persons who must be consulted, at least eight are appointed by the government itself and may not present a sufficient diversity of views on the matter. Moreover, these eight persons represent eight bodies that are also represented on the Commission. It is difficult to see what purpose this consultation will serve in getting a healthy diversity of views in appointment. It is also not clear why the President of the Supreme Court Bar Association (a purely private body representing one sub-set of lawyers) should be consulted when the Chairperson of the Bar Council of India is also being consulted. Likewise, the requirement to consult any two Vice-Chancellors may likely result in the government consulting only those Vice-Chancellors it has appointed.

Since the EC is a body empowered to take action against the government and its officers for failing to do their duty, one that is so controlled by the government in the manner in which it is constituted may not result in a sufficiently independent body that that carries out its functions in a robust manner. While there has to be some involvement of the government, it may make more sense to involve greater civil society participation and transparency in the process. A five-member body featuring a representative of the executive, legislature, judiciary and members of civil society unaffiliated with government would in my view make an adequate replacement to the present scheme. The process could also be made more transparent by requiring that members apply to be considered, interviews be conducted in an open manner, and decisions be made on clear criteria laid down by the appointing committee.

(Alok Prasanna Kumar is Senior Resident Fellow at Vidhi Centre for Legal Policy.)

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Death and the special legislation – Why the CrPC’s death penalty safeguards should also be available when death is awarded under other laws

ProceduralLawOfTheDeathPenalty_RahulRamanApart from the Indian Penal Code, 1860, there are 23 statutes that prescribe the death penalty as a form of punishment in India. The Anti-Hijacking Act, 2016 is the most recent addition to this list.

The movement towards making the death penalty an exceptional punishment began in 1955, after the repeal of Section 367(5) of the Code of Criminal Procedure, 1898, which required courts to record reasons when deciding not to impose the death penalty. Several important substantive and procedural safeguards were then introduced by the legislature and the judiciary to ensure the fair administration of the death penalty.

When safeguards in the CrPC are not available

The Code of Criminal Procedure, 1973 (“CrPC) requires the court in Section 354(3) to record “special reasons” while awarding the death penalty. It also requires the obligatory confirmation of the death sentence by the High Court. There are however, quasi-judicial bodies with the power to award the death penalty, which are bound only by the procedures prescribed in their parent statutes and not the CrPC. Some of these statutes include the Air Force Act, 1950 (“Air Force Act”), the Assam Rifles Act, 2006, the Defence of India Act, 1971, and the Karnataka Control of Organised Crime Act, 1999. These statutes remain bound by the principles of natural justice (S.N. Mukherjee v. Union of India, 1990 AIR 1984).

An example of a quasi-judicial proceeding that does not follow the procedures contained in the CrPC is that of “court martial”, provided for in the Army Act, 1950, the Air Force Act, and the Navy Act, 1957. The rules of procedure to be followed during a court martial proceeding are prescribed in the respective statutes itself. These procedures do not provide for safeguards similar to those in the CrPC. For example, there is no statutory onus on the court to provide “special reasons” in a court martial proceeding.

In S.N. Mukherjee v. Union of India, among the other issues before a constitution bench of the Supreme Court, inter-alia, were whether reasons are required to be recorded at the stage of (i) recording of finding and sentence by the court-martial; (ii) confirmation of the findings and sentence of the court-martial; and (iii) consideration of post-confirmation petition.

With respect to the first issue, the Court noted that the court martial is not required to record reasons at the stage of recording of findings and sentence. Similar conclusions were reached regarding the second and third issues as well. While these observations were made in relation to the provisions of the Army Act, these observations would hold true for the other two statutes as well since the procedures for court martial are similar.

Relying on the SK Mukherjeee dicta, the Delhi High Court in Balwinder Singh v. Union of India, 64(1996) DLT 385, decided not to interfere with the findings of court martial on the ground of absence of any ‘special reasons’ but commuted the death sentence to imprisonment for life on other grounds.

The petitioner was charged under Section 69 of the Army Act for committing murder. The general court martial found the petitioner guilty and sentenced him to death. This was further confirmed by the Central Government. The petitioner had also exhausted the recourse available to him under Section 164(2) of the Act. Section 164(1) and (2) provide for a remedy against, inter alia, the sentence of a court martial. The aggrieved party can present a petition before the confirming authority, and after that, to the Central Government or the Chief of Army Staff.

The petitioner, therefore, filed a writ petition under Article 226 of the Constitution challenging the above orders, questioning among other things, the absence of “special reasons” in the order of the general court martial, as stipulated under Section 354(3) of the CrPC. The petitioner also raised an argument in the alternative that the requirement under Section 354(3) should be read as a part of natural justice requirements of Article 21 of the Constitution.

The court reiterated the position laid down in SN Mukherjee, and said that the general court martial did not commit any error by not recording any ‘special reasons’ in the case. Similarly, the Court interpreted Section 162 of the Army Act to excuse even the confirming authority from providing reasons while confirming the sentence of death. Regardless, the court observed that if there are any shortcomings in the findings of general court martial or the confirming authority, they could be challenged under Article 32 or Article 226 of the Constitution. The Court failed to make any observation on the argument regarding Article 21 of the Constitution; that giving “special reasons” is essential in a case where death sentence is to be awarded irrespective of the nature of the court or tribunal.

Similarly, Section 64 of the Border Security Force Act, 1968 provides for the establishment of special courts. The General Security Force Court is empowered to pass a sentence of death under Section 72. Chapter VII (Sections 82 to 106), which lays down the procedure for the courts under this Act, does not contain any special procedure (as contained in CrPC) with respect to death sentence. The only additional requirement for passing a death sentence is that it should be passed with a concurrence of at least two-third members of the court. Other decisions of the Court can be passed by an absolute majority. This kind of voting requirement is present in other statutes that stipulate for trial by court martial as well.

Most of the other non-IPC legislations that stipulate death penalty among its punishments follow the special procedures mentioned in the CrPC with respect to the death penalty. For example, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there is a provision in Section 14 for establishing a special court for trying of offences committed under the Act. However, this court is also bound by the procedures prescribed in the CrPC.

The incorporation of special provisions with respect to the death penalty in the CrPC signifies the legislature’s intent to include additional safeguards that aim at ensuring maximum protection to a person sentenced to death. Considering the general legislative and judicial caution against the death penalty, it is important that a larger bench of the Supreme Court revisit the findings in S.N. Mukherjee. The requirements of giving ‘special reasons’ and obligatory confirmation by the High Court should be made imperative, regardless of the statute under which a person has been sentenced to death.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

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Open court hearings in review petitions after Mohd. Arif (2014)

SohamGoswami_DeathPenaltyProcedureThe Supreme Court of India has qualified the scope and extent of the right to life enshrined in Article 21, through a series of judgments from A.K. Gopalan v. State of Madras, AIR 1950 SC 27 to Maneka Gandhi v. Union of India, AIR 1978 SC 597, ensuring that infringements upon life and personal liberty may only be made through “fair, just and reasonable procedure”.

So what of the procedure extinguishing life from a person who has been found guilty of capital offences? There is a comprehensive procedure under Indian law to ensure that a person sentenced to death may be afforded the maximum opportunities to present his side of the case so that he can hopefully be acquitted or his sentence commuted. A Court of Sessions, which is the competent court to record evidence and convict the accused, must cite its reasons in writing (Section 367 of the Code of Criminal Procedure, 1973) for awarding the death sentence and must then submit that decision to the state’s High Court for confirmation (Section 366). The sentence is considered valid only after confirmation and the convict may (if the High Court certifies the case under Article 134 of the Constitution) move the Supreme Court. The convict has a right of appeal if the High Court has either (a) overturned an acquittal or lesser conviction by the Court of Sessions and awarded the death sentence or (b) withdrawn proceedings before the Court of Sessions and conducted the same in the High Court.

The Supreme Court’s review jurisdiction

Under Article 137 of the Constitution, the Court may review cases decided by them. Order XL of the Supreme Court Rules, 1966 further require review to be done in chambers (that is, by judges, conferring amongst themselves without the assistance of counsel) and based on written pleadings made by counsel.

The Supreme Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India, AIR 1980 SC 808, upheld the constitutional validity of Order XL, Rule 2 (requiring review in chambers), citing the heavy burden upon the Supreme Court to hear oral arguments in all cases within its jurisdiction.

The Supreme Court however, in Mohd. Arif v. Registrar, Supreme Court of India and Others, (2014) 9 SCC 737, dealt with the question of whether death sentence cases would form a class by themselves, meriting separate treatment.

The disagreement in Mohd. Arif

Writing for the majority, Justice Rohinton F. Nariman held that due to the nature of the death penalty, where:

1. the punishment is irreversible, and

2. due to lack of sentencing guidelines, it is left to various judges as to the quantum of sentence to be awarded (for instance, one judge might award the death sentence in a certain case, while another judge might sentence someone to life imprisonment for the same offence and same circumstances), sentencing was often arbitrary;

the highest standard of scrutiny was required in such cases.

Justice Rohinton F. Nariman interpreted Justice V.R. Krishna Iyer’s (the author in P.N. Eswara Iyer) ruling as allowing for such cases to be heard orally in open court. He quotes paragraph 29A of P.N. Eswara Iyer “…indeed, there is no judicial cry for extinguishment of oral argument altogether.”

However, Justice Chelameswar dissented, holding that the question of arbitrary sentencing did not arise as the same judges of the Supreme Court who passed the original judgment were required to sit on the review bench.

However, Mohd. Arif (the lead petitioner) was denied the opportunity to file a review petition himself. This was because he had already submitted a curative petition (the last option in the Supreme Court) and the Court held that to grant him a review petition now would infinitely delay the process. The review petition is filed and admittedor dismissed prior to the curative petition.

Eventually, a Constitution Bench of the Supreme Court on January 19, 2016 allowed Arif to re-open his review petition on the ground that he would be the only person not receiving the benefit of a review petition, which would be unfair to him; further, the dismissal of the curative petition should not preclude the petitioner from receiving the benefit of a review petition in open court, no matter how slim the chance of success may be.

As one can see upon perusal of the judgment in Mohd. Arif, the purpose was to ensure that, no matter how slim, people receiving the death sentence should be given as many opportunities as permissible under the law for evidence to be re-appreciated. However, the problem that is apparent from the dissent of Justice Chelameswar is that ordinarily, the same Bench hearing the original case on merits deals with the review petition (unless any of the judges retire). It is unlikely therefore, that they would change their opinion on whether the convict should receive the death penalty; thus, the purpose of the review petition is not realised.

The purpose of the review bench, as is evident from Order XL of the Supreme Court Rules, is to merely check whether there is an error apparent on the face of the record. The composition of the bench should therefore, not matter, as the matter for appraisal should not lead to different conclusions. At the same time, the same judges having already looked into the matter once, would ordinarily not be willing to sit and review the whole case again.
Mohd. Arif is however, a pathbreaking judgment given its implications for prisoners on death row—that at the penultimate stage of proceedings at the Supreme Court, they are entitled to an open court hearing and reappreciation of evidence in their case argued by their lawyer. It remains to be seen, however, the manner in which Supreme Court deals with these petitions.

 

(Soham Goswami, currently in the third year at ILS Law College, Pune, is an intern at the Centre on the Death Penalty. The views expressed in this article are his alone.)

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Supervening circumstances and the commutation of a death sentence: A more definitive law from the Supreme Court

ProceduralLawOfTheDeathPenalty_RahulRamanIf the situation that prevailed at the time a sentence of death was delivered has changed, can the Supreme Court take those changed circumstances into account to commute a sentence of death? Less than two years ago, the Supreme Court in Shatrughan Chauhan v. Union of India, 2014 (3) SCC 1, looked into whether executing a death sentence notwithstanding the existence of such supervening circumstances would violate among other things, Article 21 of the Constitution. After weighing such circumstances in different petitions, it commuted the penalty of fifteen individuals to life imprisonment and laid down a more definitive law on the Court’s power of commutation.

The petitioners had claimed that the executive, while exercising its power under Articles 72 or 161, did not consider any supervening events. In a few previous decisions such as Triveniben (1989) and Jagdish v. State of Madhya Pradesh (2009), the Court had declared that it had a duty to protect a prisoner’s right to life till his last breath. This provided the Supreme Court with the legal basis to take supervening circumstances into consideration and those pleaded in Shatrughan Chauhan included delay, insanity, solitary confinement, and procedural lapses.

Delay in processing mercy petitions

The question of whether the executive’s delay in processing a mercy petition should be considered a supervening circumstance has troubled the Court for a long time. There is no stipulated time limit within which the executive has to dispose a mercy petition and often, there is inordinate delay.

Earlier, a division bench of the Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361, had held that a delay of two years in execution of a sentence after the judgment of the trial court would entitle the prisoner to plead for commutation of his sentence of death to life imprisonment. Soon after however, a three-judge bench in Sher Singh and Others v. Union of India, AIR 1983 SC 465, held that delay alone could not be a good enough ground for commutation of death sentence, and overruled the two-year delay rule. Nevertheless, this decision acknowledged a prisoner’s right to a fair procedure at all stages – trial, sentencing, and incarceration.

To resolve this apparent conflict, a constitution bench took up this issue in Triveniben v. State of Gujrat, 1988 (4) SCC 574. In a landmark verdict, the Court held that while an undue delay would entitle a punished individual to invoke Article 32, Vatheeswaran’s “two-year delay rule” was not correct.

The Court relied on this decision in Shatrughan Chauhan. It held that while considering the rejection of a clemency petition, the Court could not overlook the pain caused to the convict. Therefore, the Court was well within its judicial power under Article 21 read with Article 32 of the Constitution to hear a convict’s grievance and commute a death sentence to life imprisonment if it is found that that there had been undue, unexplained, and inordinate delay in execution due to the pendency of a mercy petition.

The Court decided not to lay down any compulsory period within which the President has to decide a mercy petition. While the Court would make such a determination on the facts and circumstances of individual cases, it suggested that the executive should itself weigh the aspect of delay while disposing of a mercy petition.

The Court also said that the decision of the Court in Devender Pal Singh Bhullar v. State (NCT) of Delhi, 2013 (6) SCC 195, which had disqualified cases under the Terrorist and Disruptive Activities (Prevention) Act, 1987 from scrutiny on account of delay, was per incuriam. Any person sentenced to death could avail “delay” as a supervening circumstance regardless of the offence and the statute under which he has been convicted. Later, the Supreme Court recognised this finding in Navneet Kaur v. State of NCT of Delhi, Curative Petition (Criminal) No. 88 of 2013 (Supreme Court) to commute Devender Pal Singh Bhullar’s death sentence to life imprisonment.

Insanity or mental illness

The next ground considered by the Court was that of “insanity” or “mental illness” as a supervening circumstance. The Court after referring to several international conventions like the International Covenant on Civil and Political Rights concluded that this was a valid supervening circumstance. It noted that once mental illness of the convicted individual is medically certified, executing him would be in violation of the international convention to which India was a party, and of Article 21 of the Constitution.

Solitary confinement

Despite underlining its own finding in Sunil Batra v. Delhi Administration and Others, 1978(4) SCC 494, the Supreme Court decided not to interfere on the ground of “solitary confinement” in Shatrughan Chauhan. Later however, the Allahabad High Court in People’s Union for Democratic Rights v. Union of India, 2015(2) ADJ 2015 and the Supreme Court in Ajay Kumar Pal v. Union of India, 2014(13) SCALE 762 held that “solitary confinement”, along with other factors, was a permissible supervening circumstance to commute death sentence to life imprisonment.

Procedural lapses

The final ground raised was that of “procedural lapses” made by the executive while disposing of mercy petitions. The Court held that the procedures prescribed for the Ministry of Home Affairs were a necessary requirement under Article 21 to treat the death row convicts fairly. It noted that the President should be provided with all the relevant material to assist him in disposing the mercy petitions. The concerned departments cannot give or seek piecemeal information regarding the petition to be decided. However, the scrutiny of a procedural anomaly would be done on a case-to-case basis.

The circumstances raised in Shatrughan Chauhan are not exhaustive. The addition (or removal) of supervening circumstances to this list would depend on the judicial attitudes to reconciling convict’s rights with those of the victim or the society. Further, despite the unambiguous decisions in Triveniben and Shatrughan Chauhan, it is entirely up to the Court to see on an individual basis, how to interpret ‘undue and unexplained’ delay and whether to permit it as a supervening circumstance.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

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Sabarimala temple-entry controversy: Explained by myLaw

What is the #Sabarimala temple entry controversy all about? What are the legal and constitutional complications? Which fundamental rights are in conflict here? And how do we decide whose rights should prevail? We explored all these questions to give you a clearer picture. Watch below and don’t forget to let us know what you think.

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