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Category: Supreme Court of India (page 1 of 15)

Taking a stand on sitting down

SayakDasguptaA few years ago, I had read an article about the peculiar social and cultural differences between Japan and the west. It was written by an American man who had married a Japanese woman and settled down in Tokyo. He wrote of an incident when his parents-in-law had come to eat dinner. As they entered, the writer, as a matter of habit, proceeded to help his mother-in-law take her coat off and put it on the coat rack. He then realised that his father-in-law had not taken too kindly to that rather innocent act. The writer’s wife told him later that while taking your guest’s coat was a gesture of polite hospitality in the west, in Japan it was an act of deep intimacy – one only husbands can do for their wives. When it comes to love, the Japanese are culturally not as flamboyant, effusive and demonstrative as the Americans or Europeans (the Japanese millennial might be more westernised, but this seemingly still holds true for most of Japan). They don’t hug and kiss each other all the time. They don’t say “I love you” at the end of every conversation. Instead, the Japanese show their affection for their spouses and even their children through a hundred small acts that demonstrate caring and intimacy. This restrained, understated form of love might seem strange and even silly to westerners, but that doesn’t make it any less valid. In fact, it has its own charm and beauty.

This is also true of Indians. I am sure only a minority of the Indian readers of this blog will have actually heard their parents or grandparents openly profess their love for each other. And your mother or father might not actually say the words, but they show you they love you in other ways (making your favourite food, feeding you before they eat, giving you extra portions), and perhaps you do the same. Now, imagine if some people found this unspoken love ridiculous and made it a rule that every morning before you take a bath you must step outside your house and shout “I love my mother/father/spouse” loudly, for everyone to hear. Isn’t that strangely intrusive and oddly obtrusive at the same time? What does bathing have to do with loving your family? Why do you have to demonstrate to everyone regularly that you love your mother? Do you really need to remind yourself that you love your father? Will this make you love them more?

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Shyam Narayan Chouksey (Image from Facebook)

The Supreme Court’s interim order pursuant to the writ petition filed by Shyam Narayan Chouksey seems to suggest that your love for your country should be demonstrated openly and publicly every time you go to a theatre to watch Shah Rukh Khan romance an actress in the Swiss Alps or Salman Khan single-handedly beat up the entire Indian mafia. Many people have asked a very pertinent question: why movie theatres? On the face of it, playing the national anthem before a film might seem like quite an arbitrary way to instil patriotism in people. It’s like making people sing ‘Vande Mataram’ every time they open a book. But film as a medium is optimal for eliciting an affective reaction. When people go to watch a film, you have a large group of people in a single enclosed space completely focused on whatever is happening on the screen. It is the perfect setting to make you feel whatever the person in control wants you to feel. As author China Mieville has said, “You know how easy it is to emotionally manipulate you. Hollywood is a factory to manipulate you. That is what it does. That is what it is for. Emotion is very easy to manipulate. You’re in a darkened room, there are loud noises, there’s light shining in the darkness. It is an overwhelming experience in certain ways. I think quite a lot of the time when people say ‘I liked it’, what they mean is something along the lines of ‘I was temporarily stupefied by noises and lights for which my limbic system has no adaptive evolutionary mechanisms to respond with.’” The movie theatre’s unique ability to sweep you off your feet is why it has historically been the preferred venue for propaganda. Of course, it was in a movie theatre where this all began.

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The disputed scene from Kabhi Khushi Kabhi Gham (Image from YouTube)

In 2001, Shyam Narayan Chouksey was in Jyoti Talkies, a movie theatre in Bhopal, watching Karan Johar’s Kabhi Khushi Kabhi Gham. In one scene clearly designed to pull at the heartstrings of the patriotic NRI, an Indian-origin child born in the UK surprises his parents by singing the Indian national anthem at an event in his preppy private school. Mr. Chouksey immediately stood up for the anthem, but was inconsolably dismayed to see that everyone else hadn’t done the same. In fact, some even booed at him (probably because he was blocking the screen). He was also angered by the movie’s treatment of the national anthem. He filed a writ at the Madhya Pradesh High Court and it went to a double bench. Coincidentally, one of the judges was Dipak Misra J, the same judge who delivered the interim order on November 30, 2016. The 2003 judgment delivered by Misra J is quite a read, with several paragraphs dedicated to flowery, grandiose, baroque (to the point of incoherence) praise of the national anthem. “The national anthem is pivotal and centripodal to the basic conception of sovereignty and integrity of India,” it declares. “It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour.” Denouncing the scene in the film in which a young boy falters while singing the national anthem, Misra J writes: “They have not kept in mind ‘vox populi, vox dei’. The producer and the director have allowed the National Anthem of Bharat, the alpha and omega of the country to the backseat. On a first flush it may look like a magnum opus of patriotism but on a deeper probe and greater scrutiny it is a simulacrum having the semblance but sans real substance. There cannot be like Caesar’s thrasonical brags of ‘veni, vidi, vici.’ The boy cannot be allowed to make his innocence a parents rodomontrade, at the cost of national honour. In our view it is contrary to national ethos and an anathema to the sanguinity of the national feeling. It is an exposition of ad libitum.” The High Court’s decision was to ban Kabhi Khushi Kabhi Gham until the scene in question was deleted.

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Justice O. Chinnappa Reddy who delivered the Bijoe Emmanuel judgment (Image from supremecourtofindia.nic.in)

The judgment referred extensively to the landmark case of Bijoe Emmanuel & Ors. vs. State of Kerala & Ors. AIR 1987 SC 748. On July 8, 1985, the Emmanuel siblings – 15-year-old Bijoe, 13-year-old Binu and 10-year-old Bindu – were attending school when the headmistress announced that the national anthem would be sung in the classroom. The siblings stood up but did not sing, as they were Jehovah’s Witnesses, a specific Christian sect that prohibits its followers from singing in praise of anything or anyone apart from their god. Their father, V.J. Emmanuel asked for a special concession for his children on religious grounds and the headmistress and senior teachers agreed. However, word reached a member of the legislative assembly who raised the matter in the house and soon a senior school inspector ordered the headmistress to expel the children. Mr. Emmanuel filed a writ petition in the Kerala High Court, but when the decision went against him, he appealed to the Supreme Court. The Supreme Court upheld the students’ right not to sing the national anthem, stating that their fundamental rights under Articles 19(1)(a) and 25(1) had been infringed. In its 2003 judgment, the Madhya Pradesh High Court seems to have relied specifically on the following paragraph from the Bijoe Emmanuel judgment: “We may at once say that there is no provisions of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. It is true Art. 51-A(a) of the Constitution enjoins a duty on every citizen of India ‘to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.’ Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing.”

Misra J seems to have relied on a literal reading of this paragraph when he, in the interim order dated November 30, 2016, made it compulsory for all moviegoers to stand up when the national anthem plays in a movie theatre. He writes in the order, “Be it stated, a time has come, the citizens of the country must realise that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. [sic] The idea is constitutionally impermissible.” And showing respect means standing because that has been mentioned in the Bijoe Emmanuel judgment. One wonders, if there had been no Bijoe Emmanuel judgment, would the order have made it compulsory for people to sing it as well? Just like there is no provision of law that obliges anyone to sing the national anthem, there is also no provision that obliges anyone to stand for the national anthem. The Prevention of Insults to National Honour Act, 1971, a tiny act with just four sections, states in Section 3: “Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.” Would sitting quietly during the singing of the national anthem constitute prevention of singing the national anthem?

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Justice Ruth Bader Ginsburg

Earlier this year, American football player Colin Kaepernick caused a huge controversy in the US when he sat or kneeled during the American national anthem in a series of matches to protest the killing of several black US citizens by the police. Was he being unpatriotic? Many of his fellow athletes didn’t think so and joined him. When asked about it in an interview, Justice Ruth Bader Ginsburg said, “I think it’s really dumb of them. Would I arrest them for doing it? No. I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag-burning. I think it’s a terrible thing to do. But I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act. It’s dangerous to arrest people for conduct that doesn’t jeopardise the health or well-being of other people. It is a symbol they are engaged in.” This is the point. Forcing people to demonstrate faux patriotism under the threat of arrest is dangerously close to totalitarianism. Playing the national anthem in movie theatres serves no reasonable purpose and has, in fact, been the cause for violence in the recent past, including the case of Salil Chaturvedi, who was assaulted in a movie theatre in Goa for not standing up for the national anthem. Why did he not stand up? He is a paraplegic. In the 90s, he had represented India in two wheelchair tennis tournaments. “Irrespective of my contribution to the country, I still need to prove my patriotism,” he said. People have varied relationships with their nation and have varied ways of expressing them. Forcing everyone to conform to one arbitrary way of engaging with their country will not make them more patriotic. As Justice Chinnappa Reddy said at the very end of the Bijoe Emmanuel judgment, underlining, in my opinion, the true spirit of the decision: “our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”

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Rabindranath Tagore

One last thing. The author of our national anthem, Rabindranath Tagore, was often very vocally critical of the very concept of a “Nation”. In 1916, he visited Japan and was alarmed by what was being done in the name of nationalism there. I started this piece with Japan and it seems natural that I should end with Tagore’s observations about it: “I have seen in Japan the voluntary submission of the whole people to the trimming of their minds and clipping of their freedom by their government, which through various educational agencies regulates their thoughts, manufactures their feelings, becomes suspiciously watchful when they show signs of inclining toward the spiritual, leading them through a narrow path not toward what is true but what is necessary for the complete welding of them into one uniform mass according to its own recipe. The people accept this all-pervading mental slavery with cheerfulness and pride because of their nervous desire to turn themselves into a machine of power, called the Nation, and emulate other machines in their collective worldliness.”

(Sayak Dasgupta wanders around myLaw.net looking for things to do.)

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[Video] Mathura: The rape that changed India

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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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What’s the issue – Understand why and how courts frame issues in civil suits

JSaiDeepak_OnTrialIt helps to occasionally step back and seek the true meaning of an element of procedure. This is true about the framing of issues in a civil suit since the significance of this step in a trial is often taken for granted.

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What is an issue?

The title of Order 14 of the Code of Civil Procedure, 1908 (“CPC”) is “Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed Upon”. Clearly, a suit is determined on the basis of issues of law or other issues agreed upon by the parties in a suit. But what is an “issue”? Although the CPC does not define the term, Sub-rule 1 of Rule 1 of Order 14 says that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In other words, both parties must disagree on a material proposition of fact or law.

The Evidence Act, 1872 also defines “Facts in issue” to mean and include any fact which, either by itself or in connection with other facts, has a bearing on a right or liability asserted or denied in a suit. According to the explanation to this definition, when a court records an issue of fact under the CPC, the fact to be asserted or denied in response to such an issue would also be treated as a fact in issue.

What is a material proposition giving rise to an issue? Sub-rule 2 of Rule 1 states that material propositions are those propositions of law or facts which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute a defence. Simply put, a material proposition is one that advances a party’s case factually or legally.

Sub-rule 3 mandates that each material proposition on which the parties disagree shall be framed as a distinct issue. Could it be said therefore, that propositions of fact or law which do not further a party’s case are not material and therefore ought not to be framed as issues? What consequences follow when a proposition of fact or law, although material, is not framed as an issue despite the parties being at variance with each other?

On this, the Supreme Court has held that the non-framing of an issue does not vitiate the proceedings as long as the pleadings of parties bear out that the issue exists and both parties have led evidence at trial to prove their respective contentions on the issue. In other words, a court can rule on an issue even if it has not been specifically framed, so long as it is material to the determination of the suit.

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The process of framing

How does a court go about framing an issue? Sub-rule 5 of Rule 1 lays down the procedure for this. At the first hearing of a suit, the court shall, after reading the plaint and the written statement, and after examination under Order 10 Rule 2, and after hearing the parties or their counsel, ascertain upon what material propositions of fact or law the parties are at variance, and shall then proceed to frame and record the issues on which the right decision of the case appears to depend.

What does this mean? Simply, that a court has to understand the contentions of the parties from their written pleadings and oral submissions and distill only those propositions of fact and law on which the parties differ and which are “material” for the adjudication of the suit. The question of materiality in Sub-rule 5 has no bearing on the tenability of the contentions of parties on factual or legal propositions. It simply refers to testing an issue for its relevance to the determination of the case.

For instance, in a suit for patent infringement, if there is no dispute between the parties about the plaintiff’s ownership of the patent, there is no point in framing an issue on it. Even though the question of ownership is material, the parties do not disagree on it. Contrast this with a situation where the plaintiff claims to be an assignee of the erstwhile patent owner and the defendant disputes the fact of assignment. The question of ownership or assignment of the patent is material because under the Patents Act, only a patentee or the exclusive licensee may institute a suit for infringement. In other words, the maintainability of the plaintiff’s action is in question. Moreover, since the parties disagree on this material question, the court has to frame an issue on it.

This procedure of framing of an issue needs to be clearly understood. Some people tend to read more into the mere framing of an issue under Order 14 than is warranted. The framing of an issue does not amount to a court taking a position on the contentions of the parties on a material question of fact or law. The court is merely etching the contours of the trial so that the progress of the trial is not waylaid by a slugfest on immaterial issues that have no bearing on the adjudication of the rights and liabilities of the parties. Reading the Supreme Court’s decision in Makhanlal Bangal v. Manas Bhunia (2001), delivered in the context of the Representation of the People Act, 1951, but relevant since the procedure under the CPC applies to the statute, will help clear the fog around the framing of issues.

In the next post, I will deal with the commencement of trial.

Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

We hope you liked this article. You might want to check out our course on Essentials of Procedure And Jurisdiction!

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More tools for litigators after Commercial Courts Act boosts discovery in India

JSaiDeepak_OnTrialI have often heard it lamented that India lacks U.S.-style discovery mechanisms at trial. While I am no expert on U.S. procedural law, I believe that Indian civil procedure contains substantial mechanisms for discovery. Let us now look at the mechanisms available under the Code of Civil Procedure, 1908 (“CPC”) including those recently introduced to the CPC through the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Commercial Courts Act“). Employed effectively, they can narrow down the scope of facts and issues that need examination at trial.

Discovery under the CPC

Section 30 of the CPC provides for a court’s power to order discovery. At any time during the conduct of a suit, this provision empowers a court, either of its own motion or on the application of a party, to pass necessary and reasonable orders relating to the delivery and answering of interrogatories; the admission of documents and facts; and the discovery, inspection, production, impounding, and return of documents or other material objects that may be produced as evidence. The provision also empowers a court to issue summons to persons whose attendance is required either to give evidence or to produce documents or other objects that may be led in evidence. A court can also order any fact to be proved by way of an affidavit. While it is commonly assumed that only Order XI of the CPC corresponds to Section 30, Orders XII, XIII, and XVI also contain provisions that relate to Section 30.

What’s the role of a court in discovery proceedings?

The framework that emerges from a combined reading of Section 30 and Orders X, XI, XII, XIII, XVI, and XVIII informs us that the assumption that Indian courts lack powers of discovery because they adhere to the adversarial system of justice may not be true. In Maria Margadia Sequeria v. Erasmo Jack De Sequeria (2012), the Supreme Court, holding that discovery was one of the main purposes of the existence of courts, made some telling observations:

“A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

41. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.

42. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.”

The Court also quoted from the report of the Malimath Committee, which had highlighted the drawbacks in a strictly adversarial system and recommended that courts be statutorily mandated to become active seekers of truth. This fundamental shift in the Indian approach to disputes must be borne in mind when one invokes the mechanisms for discovery. In A. Shanmugam v. Ariya K.R.K.M.N.P.Sangam (2012), the Court, apart from reiterating the ratio of Maria Margadia Sequeria, categorically observed that ensuring discovery and production of documents and a proper admission or denial is imperative for the effective adjudication of civil cases.

Bar raised by Commercial Courts Act

The Commercial Courts Act, 2015 builds on this approach further by introducing an improved discovery mechanism, evident from the language and structure of Rules 1 to 5 in the revised Order XI, which is specific to suits of a commercial nature. The spirit of the revised framework is perhaps best captured by Sub-rule 12 of Rule 1. It unequivocally states that the duty to disclose documents that have come to the notice of the party shall continue until the disposal of the suit. It goes without saying that the reference here is to documents, which are relevant and necessary to decide any question that is germane to the dispute before the court. Critically, both parties are expected to file a list of all relevant documents which are in their power, possession, or control regardless of whether those documents support or undermine their respective positions on merits. Clearly, the bar has been raised under the Commercial Courts Act and both the parties and the courts have access to fairly effective discovery options to facilitate expeditious disposal of suits. The actual employment of these options, of course, remains to be seen.

In the next part of this series, I shall discuss framing of issues and the commencement of trial.

J. Sai Deepak is an engineer-turned-law firm partner-turned-arguing counsel. Sai is the founder of Law Chambers of J. Sai Deepak and appears primarily before the High Court of Delhi and the Supreme Court of India. He is @jsaideepak on Twitter and is the founder of the blawg “The Demanding Mistress” where he writes on economic laws, litigation, and policy. All opinions expressed here are academic and personal.

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Nanavati v. Maharashtra, the sensational true case behind Rustom (2016)

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Rustom, released today, is Akshay Kumar’s latest movie. You probably know that it is based on a true story, but do you know the details of the sensational trial on which it is based? The real story is far more explosive and dramatic than any fictional film could possibly be.

K.M. Nanavati v. State of Maharashtra had all the elements of a thrilling potboiler but it involved real people and events. The cast of the actual case became more famous than movie stars – not just K.M. Nanavati, Sylvia Nanavati, and Prem Ahuja, who were involved in the actual incidents, but even those involved in the subsequent trials, including Y.V Chandrachud, Karl Khandalavala, and Ram Jethmalani. Moreover, the case became forever etched in the legal history of India as the last jury trial held in the country.

Join us as we delve into the events, personalities, and the unbelievable twists and turns of this true story that probably became the first instance of a trial by media in India. With the help of Senior Advocate Sanjay Hegde and legal historian Kalyani Ramnath, we explore how this case has affected the way we deal with circumstantial evidence, what “grave and sudden provocation” means, the Governor’s power to grant pardons, and much more. We also ask the big question: Should the jury trial be brought back?

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[Video] How the President’s Rule drama in Uttarakhand and Arunachal illustrate India’s Centre-State relations

Earlier this year, a constitutional provision returned to the headlines after a brief hiatus. Article 356 was invoked and President’s Rule imposed in the states of Arunachal Pradesh and Uttarakhand. After prolonged political drama, the judges of the Supreme Court and the Uttarakhand High Court struck down these proclamations.

As the situations developed in parallel, it became clear that the Governors of the states played key roles in the use of this constitutional provision as a weapon of political war. This was also evident from a bare reading of the text of Article 356.

What was the constitutional design behind vesting the Governor with these powers? Why did the judiciary not interfere, as Article 356 was repeatedly misused for forty years? What motivated the judges of the Supreme Court and the Uttarakhand High Court to strike the proclamations down?

To answer these questions, we turned to senior advocate and Times Now regular Sanjay Hegde and Alok Prasanna Kumar, the Senior Resident Fellow at the Vidhi Centre for Legal Policy. As they explain judgments of the Supreme Court and narrate tales of political intrigue, you will realise that the history of Article 356 is the history of Centre-State relations in India.

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

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(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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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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[Video] Judicial pendency: What’s the big problem?

Why did the Chief Justice of India have a “breakdown” about the impossible burden facing the judiciary? Is the judiciary doing nothing about the massive backlog of pending cases at the courts? Are the courts really that slow in India? What is the problem, anyway? Will appointing new judges fix the problem? There are no simple, straightforward answers (or questions) when it comes to judicial pendency in India, but here is a video in which we have tried to make the issue much clearer.

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