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Law Commission targets money influence in elections, bats for greater transparency in donations and party accounts

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Post date April 7, 2015
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The Law Commission of India has suggested sweeping reforms to India’s electoral system in its 255^th report, which was submitted to the Union Ministry of Law and Justice on March 12, 2015. The report follows growing public dissatisfaction with the lack of transparency and accountability in India’s electoral system. It targets the influence of money in elections and bats for greater transparency in donations and party accounts. It has also dealt with the issues of “paid news”, independent candidates, the “none-of-the-above” vote and the right to reject, the use of totalisers for counting votes, and the reorganisation of the office of the Election Commission of India. Significant among the previous efforts to examine the challenges of conducting free and fair elections in India have been the 170^th report of the Law Commission of India in 1999 and the 2004 report from the Election Commission of India.

Period of election finance regulation

Section 77 of the Representation of People Act, 1951 regulates the amount of money that can be spent by candidates or their agents. The report recommends an amendment to this provision so that the regulation applies for a longer period, that is, from the date of notification of elections to the date of declaration of results. Currently, this section only applied to money spent from the date of nomination to the date to declaration of the results.

More controls on private donations

Calling for stricter laws on donations by private entities to political parties, the report recommends that a company must necessarily pass a resolution at an annual general meeting to authorise a contribution to a political party, instead of simply consulting its Board of Directors, as is the rule currently.

Greater disclosure of donations by candidates

The existing rules on the subject merely require candidates to maintain an account of electoral expenses but the report recommends greater disclosure obligations, requiring candidates to not only maintain an account but also disclose the names, addresses, and PAN card numbers of donors and the amounts they have contributed. It also recommends provisions for the disqualification of a candidate for failing to lodge an account of election expenses and reports of contributions.

Greater disclosure of donations by parties

All parties must be required to disclose all contributions in excess of Rs. 20,000, including aggregate contributions from a single donor amounting to Rs. 20,000. Previously, the provision only required candidates to disclose contributions in excess of Rs. 20,000 without any rule on aggregate contributions, leading to multiple cheques of a smaller amount or cash transactions.

The Election Commission must also prescribe guidelines for a “statement of election expenditure” that should be filed by every party contesting an election within 75 days of the elections to the state assembly and 90 days of the general elections.

Image above is from Al Jazeera English’s photostream on Flickr. CC BY-SA 2.0

Audit and public inspection of political party accounts

The report recommends that political parties must compulsorily maintain and submit annual accounts to the Election Commission. These accounts need to be duly audited by a chartered accountant chosen from a panel maintained by the Comptroller and Auditor General. The Election Commission must also be authorised to levy a fine of up to Rs. 50 lakhs if its finds that any particulars in the party’s statements have been falsified. This information must be available for public inspection as framework for such rules exists, currently.

Changes to anti-defection law

An amendment has been recommended to the Tenth Schedule of the Constitution of India by which the power to decide on questions of disqualification on the ground of defection will be with the President of India for the Parliament and the governors of the states for the legislative assemblies, instead of the current practice of decision-making by the Speaker or the Chairman.

Strengthen the Election Commission of India

Currently, the office of the Election Commission of India consists of Chief Election Commissioner (“CEC”) and two Election Commissioners and while the office of the CEC is granted the same level of constitutional protection as that of a judge of the Supreme Court, the removal of the Election Commissioners can be affected by the President. The Law Commission has recommended that all three members receive equal constitutional protection.

The issue of appointment of the CEC and the ECs was also discussed in the report, calling to make the process more consultative by having a statutory provision under which the President must consult the Prime Minister, the Chief Justice of India, and the Leader of Opposition in order to make these appointments. This is a step up from the current practice in which the President takes the decision by himself.

Lastly, the report also recommended the creation of a permanent, independent secretariat.

Paid news and political advertisements

Justice (Retd.) A.P. Shah is the Chairman of the Law Commission of India.

Paid news and political advertisements, the report recommended, must receive recognition in the Representation of People Act. The terms “paying for news”, “receiving payment for news”, and “political advertisement” need to be defined and treated as electoral offences and strict punishment should be prescribed for them. All forms of media should also be required to make disclosures so that disguised political advertisement can be prevented.

Opinion polls

The Report has suggested recommendations to the Representation of Peoples Act to ensure that organisations releasing opinion polls possess the necessary credentials and to make the public aware that such polls are simply forecasts liable to error.

NOTA and the right to reject

The Law Commission is of the opinion that good governance can be achieved by bringing about changes in accountability, transparency, and decriminalisation, and without invalidating elections through the extension of the “none-of-the-above” vote to a right to reject a candidate.

The use of a totaliser for counting votes

The Law Commission has endorsed the Election Commission’s suggestion of introducing a totaliser for counting votes recorded in electronic voting machines. The main reason for this is that the current system of counting votes reveals voting patterns in each polling station, leaving the voters vulnerable to potential harassment and victimisation. If a totaliser is employed, it can connect to voting machines of up to 14 polling stations, which will go a long way in maintaining secrecy and preventing the disclosure of voting patterns.

The recommendation on restriction of government sponsored advertisements

The report has also recommended restrictions on government-sponsored advertisements six months prior to the date of the expiry of the legislature. This means that the party in power cannot use its position and influence as a means of advertising its achievements. An exception has been suggested for advertisements highlighting the government’s poverty alleviation and health-related schemes.

Restrict the number of seats from which a candidate can contest elections

Section 33(7) of the Representation of People Act permits a candidate to contest any election (parliamentary, assembly, biennial council, or by-elections) from up to two constituencies. The Law Commission has recommended an amendment to restrict candidates to one constituency.

Independent candidates

The Law Commission has also called for disallowing independent candidates from contesting elections since it is of the opinion that most of them are “dummy/non-serious candidates”, only serving to increase confusion among voters.

Tags Election Commission of India, elections, electoral reforms, Law Commission of India, political donations, political parties

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Arbitration appointments and appointing authorities – Drafting to prevent court involvement in arbitrator appointments

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Post date March 30, 2015
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Mostly of the ad hoc kind, domestic arbitrations in India regularly break down and seek assistance from the courts. The process breaks down almost as soon as it is commenced, when parties cannot constitute the tribunal on their own. They invoke Section 11 the Arbitration and Conciliation Act, 1996 (“ACA”) to have a high court make the appointments for them. As the annual reports of various high courts will testify, a significant volume of Section 11 applications are pendingclogging up before them . and Arbitration practitioners too corroborate that a domestic arbitration that does not involve a Section 11 application is rare.

Section 11 proceedings are not efficient by any means. While practitioners suggest that the duration of these proceedings depends on the high court in question and on the complexity of each case, they have been known to sometimes stretch up to five years. They are also potentially subject to long review proceedings before the Supreme Court through the Special Leave Petition process. A 2013 survey conducted by Price Waterhouse Coopers found that the constitution of the arbitral tribunal consumed the most amount of time in the arbitral process in India, more than other time-consuming factors such as the discovery and inspection of documents and the enforcement of awards.

Here, we will discuss the need to contractually avoid requiring the support of the courts in the constitution of the tribunal and the means of doing so.

Judicial overreach is not the reason for the glut of Section 11 applications

Most literature on arbitration in India posits the problem of the involvement of courts in arbitrator appointments as one of ‘judicial overreach’, that is, the judiciary is seen as unnecessarily ‘interfering’ in the appointments process. Judicial overreach is undoubtedly a part of the problem and is the reason arbitrator appointments are subject to the special leave petition review process. Ultimately however, it is the parties who are responsible for the large number of Section 11 applications pending before the courts. Section 11, after all, requires an application from a party to initiate the process; the proceedings are not suo motu. Thus, merely changing judicial attitudes (of interference) towards arbitration is unlikely to be the only answer to the problem of arbitration-court entanglement in arbitrator appointments in India; rather, we need to understand what drives the practice of parties routinely approaching courts to appoint arbitrators, and what can be done to avoid this.

The real reasons

Both statute and arbitral infrastructure (or lack thereof) create the perverse incentive structures that drive the frequent invocation of Section 11. For one, there is a lack of awareness amongst practitioners of simple drafting practices than can avoid the need to resort to a Section 11 application. Most arbitration clauses we have examined do not provide for either institutional arbitration or an appointing authority in case of ad hoc arbitration, both of which can avoid the need to approach a high court when, as is often the case, a respondent fails to cooperate in the constitution of the tribunal.

Secondly, there is a perception that Section 11 is not the most time-consuming or costly affair. This is partially true in the sense that the court fees involved in Section 11 (only Rs. 500 in Karnataka) are likely to be lower than what an arbitral institution or trade body will charge to act as an appointing authority; however, when one factors in counsel fees as well as the potential duration of Section 11 proceedings (especially when SLP proceedings are also involved), the costs become significant.

Statute panders to the ‘uncooperative respondent’

Another important driver of the large number of Section 11 applications seems to be statute itself. The ACA does not provide for the eventuality of one of the parties turning uncooperative (in appointing arbitrators), even though recalcitrant behavior is quite typical in adversarial proceedings (one party usually always stands to benefit from engaging in dilatory tactics). Under the ACA, if one of the parties does not cooperate in appointing the arbitrator(s), the court is automatically called into play. In England, by contrast, the default provision provides for the other side’s appointment to be final, thereby eliminating the need for court intervention in typical cases of respondent non-cooperation. A simple correction of the default rule of arbitrator could go a long way in reducing the number of Section 11 applications, especially since practitioners suggest that the ‘uncooperative respondent’ is common feature of arbitration appointments in India.

Drafters should opt for institutional arbitration or provide for an appointing authority

The court fee required to file a Section 11 application before the Karnataka High Court (above) is only five hundred rupees. That should not obscure the fact that proceedings can drag on for years and drive up legal costs. Image above is from Börkur Sigurbjörnsson’s photostream on Flickr. CC BY 2.0

While statutory reform is out of a contractual drafter’s control, drafters can choose to opt in for institutional arbitration (whose rules will inevitably provide that the institution will act as appointing authority should the parties be unable to agree on the tribunal within a stipulated timeframe) or provide for an appointing authority as a fallback in their ad hoc arbitration clauses to avoid the need to go to the courts under Section 11. There are several trade bodies and arbitral institutions willing to act as appointing authorities, and any costs incurred in making use of these facilities is likely to be offset by the costs saved in going through the Section 11 process.

(Sindhu Sivakumar is a solicitor on the rolls of England and Wales and qualified as an advocate in India.)

Tags appointment of arbitrators, arbitration, arbitration agreement, drafting for arbitration

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How Narrain, Narasappa, and Salelkar built organisations that helped non-legal actors engage with the law

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Post date March 2, 2015
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A lawyer is conventionally imagined as a standalone creature – someone who exercises the faculties of research, drafting, and argumentation as an individual. A lawyer operates in these modes, usually aided by clerks and junior associates. With the expansion of the modes of negotiation-based lawyering, legal work has spread across large teams and progresses along associational logics. This is especially true for legal practice in transactional advice, due-diligence exercises, arbitration, and so on. Of the four figures I have spoken about before, three have started or helped start new organisations – Arvind Narrain started the Alternative Law Forum, Amba Salelkar helped with the establishment of the Inclusive Planet Centre for Disability Law and Policy, and Harish Narasappa has been involved with starting two organisations – Samvad Partners and Daksh India. I wish to focus on the specific skill of beginning, sustaining, and spreading an organisation. It is not a skill that lawyering necessarily teaches. Why did these lawyers see value in initiating organisations?

We might derive organisational models from the eminent French sociologist Emile Durkheim – shared values and goals lead to a mechanical solidarity, while organic solidarity arises out of a community fitting into each other’s needs. It is difficult to fit a legal organisation clearly into the fold of one or the other. In focusing on three policy reform and legal activism organisations, I might show that their inception is closely linked with a different strategy of lawyering, and therefore, form the bases of mechanical solidarity.

Harish Narasappa at the launch of Daksh’s Rule of Law Project on February 7, 2015.

The Alternative Law Forum (“ALF”) quite literally spells its agenda out as ‘alternative’; the others too attempt to put in place a professional architecture where a diverse set of lawyering services may be nurtured and delivered. Inclusive Planet attempts to provide a bridge between mainstream lawyering wisdom and large numbers of persons with disability, advocates, caregivers, and others, who need a basic understanding of what the law is and what it can deliver for them to address disability. The spread of such legal literacy is at the heart of the ALF’s long career as well – Narrain and his colleagues speak to many non-legal audiences, especially students, about legal issues of contemporary importance, especially on gender and sexuality. At Daksh, the engagement with the public is to train a certain ear for information which is to be culled out, collated, published, and fed back into the citizenry in order to be used for effective democratic practice, in elections and elsewhere. These methods generate solidarities beyond the technological walls of legal learning and expertise. Publics involved in the journey towards a certain mode of justice or equity, come to use and inhabit the law and its machinery through such organisations. Publics are able to imagine themselves as active users of legal and judicial wings of the state. As much as this habitation may bring concrete benefits in terms of legal reform or relief, it also generates a live register in which to rehearse and consolidate the terms of citizenship.

Organisations like the Lawyers’ Collective and individual lawyers like Rajeev Dhavan, Indira Jaisingh, Prashant Bhushan, and others have provided such organisational leadership in the litigating domain. These lawyers have formed bridges between social movements, civil society orgnisations, and the judiciary, often urging the judiciary to take activist stances towards various state and private bodies. Their lawyering has yielded expansive interpretations of fundamental rights especially in the context of free speech, discrimination, the rights of minorities, affirmative action, and so on. There is no doubt that the tradition of judicial activism has been a key tool for the broadening of access to law by the general public.

ALF’s Lawrence Liang (left) speaking at the iCommons summit in Dubrovnik in 2007. CC BY 2.0

Between the law and the public, a dynamic and inchoate space has been sustained by efforts of public interest legal organisations. One could argue that this space is one among many other civil society spaces. I would argue that the use of the law and the conscious engagement of a public in such legal activism, is a specific register of civil society – one that exercises a facility in speaking the impervious state language. It may earn legal benefits. But the long view of benefits is more towards empowering a shade of public voice that speaks the language that the state speaks in. With Daksh especially, we find the ability and scale of operation to be one that impacts the everyday practice of democracy (at the localised scale of the MP and the MLA) for large numbers of citizens. To the extent that it is possible to make democracy meaningful for each citizen, organisational spaces that percolate the effect of law are most important. To this extent, the activities of legal sensitisation, teaching law to non-lawyers, campaigns for non-judicial law reform, implementation efforts that engage state actors, affected parties, intellectuals, and activists are of key importance in the wide arena of civil society efforts to engage the government. To be aware of the law, talk in its idioms, and talk back to law-making and implementing authorities is close to impossible without the assistance of organisations such as this. That lawyers such as Narrain, Salelkar, and Narasappa are able to open spaces for such active engagement with the law, involving non-legal actors, is a significant contribution to the role of law in the functioning of a democracy.

(Atreyee Majumder is an anthropologist. She teaches at the School of Development, Azim Premji University.)

Tags crafting law careers atreyee majumder, democracy, disability law, legal profession, legal skills

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GST concludes indirect tax reform but much depends on implementation by states and model GST law

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Post date February 23, 2015
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The Constitution (One Hundred and Twenty Second Amendment) Bill, 2014 (“Bill”) seeks to introduce the goods and services tax (“GST”) by conferring concurrent taxing powers on the Union and state governments on every transaction involving the supply of goods or the supply of services or both. It would immediately allow the Union to levy tax on the sale of goods which has been in the domain of the states, and the states similarly would be able to levy tax on services which until now was mostly in the domain of the Union government.

The introduction of the GST in this manner would, without doubt, be the most widespread restructuring of India’s indirect taxation system, which currently involves a multiplicity of taxes as well as cascading effects.

Removal of cascading effects

For instance, the central excise duty component suffered by goods during the manufacturing process and the additional excise duty component on imported goods are included in the value of the goods when the states levy value added tax (“VAT”). The Bill seeks to subsume various central indirect taxes and levies such as central excise duty, additional excise duties, additional customs duty, special additional duty of customs, service tax, and surcharges and cesses in relation to the supply of goods and services. The Bill also simultaneously provides for the subsuming of value added tax or sales tax, entertainment tax, central sales tax, octroi or entry tax, purchase tax, luxury tax, taxes on lottery, betting and gambling, and state cesses and surcharges imposed by the states in relation to the supply of goods and services. The removal of these various taxes and the introduction of a single point GST will thus remove the cascading effect of taxes and also simplify the number of taxes that are levied on a transaction involving goods or services. While the current scheme of the Central Excise Act, 1944 and the Finance Act, 1994 provided for the removal of the cascading effect of taxes in respect of certain central indirect taxes, and the VAT system introduced in states provided for the removal of the cascading effect in respect of tax on the sale of goods, the GST will be the first time that the cascading effect will stand removed in respect of both central and state indirect taxes. The GST, therefore, can be seen as a logical step for having an indirect tax system that seeks to capture only the value addition in the goods and services at each level, and not capture the taxes being levied at each level for the purposes of further taxation.

Types of GST taxes

To implement GST, the Bill proposes the introduction of Article 246A into the Constitution – a non obstante clause that provides that the Parliament, and with the exception of tax on the supply of goods and services in the course of inter-state trade or commerce, the states shall have the power to make laws with respect to goods and services tax to be imposed by the Union or by the states. Keeping in mind the federal structure, the Union and the states will levy the GST at each point of time in the taxation of goods and services, with the Union levying a central goods and services tax (“CGST”) and the states levying a state goods and services tax (“SGST”).

The Union Finance Minister Arun Jaitley introduced the constitutional amendment bill on the goods and services tax in the Lok Sabha on December 19, 2014.

The Bill also proposes an amendment to Article 286 of the Constitution to ensure that the supply of goods and services continues to remain outside the purview of the states’ power to tax if such supply takes place outside the state or in the course of import of goods into India or the export of goods outside India. However, this amendment is merely clarificatory. The substance and the intention of the provision continues to remain the same. Equally important is the amendment proposed to Article 248. The exclusive power of the Parliament to make any law with respect to any matter not enumerated in the Concurrent List or the State List in Schedule VII, including the imposition of tax on such matters, will now be subject to Article 246A. This essentially means that any new matters involving goods or services, including their taxes, will necessarily have to be routed by the Union through the mechanism of the GST; and thereby necessarily enabling the states to tax such matters as well.

Additionally, Article 246A(2) empowers the Parliament with the exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-state trade or commerce. This tax is called the integrated goods and services tax (“IGST”). Hence, every point in taxation will necessarily be subject to CGST, and either SGST or IGST, depending on whether the movement of goods or supply of services involves intra-state or inter-state trade or commerce. Under the proposed Article 269A, the IGST should be levied and collected by the Union but be apportioned between the Union and the States.

The additional tax – a wrong move

The manner of taxation on products such as alcohol and petroleum under the GST mechanism has been a point of disagreement between the Union and the states because of the amount of revenue generated by the states in taxing these products. The Bill has sought to address this issue and keep the states happy by keeping the taxation of alcohol and petroleum outside the purview of GST altogether. This essentially means that the states will continue to tax the sale of alcohol and petroleum under its existing state excise and sale tax laws. Additionally, to address the long standing (but slightly unjustified) concerns of revenue loss to the states, the Bill proposes an additional tax not exceeding 1 per cent on the supply of goods in the course of inter-state trade or commerce to be levied and collected by the Union Government for a period of at least two years, but assigned to the states from where the supply of goods originates. However, since this 1 per cent additional tax is intended to be collected in addition to the IGST under Article 269A, it appears that this 1 per cent additional tax falls outside the purview of the GST framework altogether; else, it could have been specifically incorporated into Article 269A itself.

This is an incorrect move under the Bill and the intention of simplifying the tax net will be partially lost if certain taxes are proposed to be kept outside the GST scheme. Further, if the 1 per cent additional tax is kept outside the GST scheme, then the assessees will not be able to avail credit of the 1 per cent additional tax being paid on the supply of goods in the course of inter-state trade or commerce; and this will become a cost that will eventually be passed on to the end customers.

The council

A commendable and necessary but tricky insertion in the Bill is the creation of the GST Council under the proposed Article 279A of the Constitution. The GST Council is intended to be an all-powerful body comprising the Union Finance Minister, the Union Minister of State for Finance, and the State Finance Minister of each state government to formulate principles and make recommendations on the following aspects of the GST:

(a) the rates, including floor rates with bands of GST;

(b) the goods and services that may be subjected to, or exempted from GST;

(c) model goods and services tax laws for adoption by the Union and the states and principles for the levy and apportionment of IGST;

(d) the threshold limit of turnover below which goods and services may be exempted from GST;

(e) special provisions with respect to the North Eastern States, Jammu and Kashmir, Himachal Pradesh and Uttarakhand; and

(f) any other matter relating to GST, as the GST Council may decide.

Having a GST Council of this nature will ensure greater coordination between the Union and states and among states. While the decisions of the GST Council are intended to be binding on the Union and the states, the principal issue here is the extent to which the model GST Law will be binding on and be implemented by the states. If one or more states, for instance, decide to make even procedural changes while adopting and enacting the model GST Law, then one of the purposes of GST – the benefit of uniformity – will be lost on the assessees; not to mention, give rise to much confusion among the assessees who are subject to taxation in multiple states. Secondly, instead of providing floor rates and bands of GST, it would have been advisable that the Bill provided for a fixed rate of taxation under the GST (subject to certain exemptions and abatements, of course). Providing for flexibility in terms of the rates that can be charged as SGST could potentially become the subject matter of much confusion in the hands of the assessees, not to mention a whole lot of business structuring and restructuring around taxation. At the same time, this proposal could lead to a healthy competition between the states and could result in SGST being charged only at the floor rates in the long run. The third and most important issue could arise not with the model GST law itself, but with its implementation. Would an issue under the SGST raised by a state government in respect of an assessee also become an issue under the CGST to be taken note of by the Union government, and vice-versa? What happens if there is a difference of opinion between the CGST authorities and SGST authorities in respect of the same issue involving the same assessee? Can proceedings be commenced only under CGST or only under SGST, or do they necessarily have to be clubbed? Which authorities get jurisdiction over the matter? Does an assessee have to respond to dual proceedings under CGST and SGST in respect of the same cause of action? While one does not expect the Bill to address these issues naturally, one hopes that the model GST law clearly enunciates and addresses such issues; and the GST Council ensures that little or no modifications are made by the states while enacting the model GST law.

Interesting in itself is the mode of decision-making by the GST Council, which has been provided in Article 279A(9). Every decision of the GST Council shall be taken by a majority of not less than three-fourths of the weighted votes of the members present and voting: (A) the vote of the Union government shall have a weightage of one-third of the total votes cast, and (B) the votes of all the state governments taken together shall have a weightage of two-thirds of the total votes cast in that meeting. One wonders how the states acceded to a situation wherein the Union government has a weightage of one-third of the votes cast. And given the current political map of India, this could result in a situation where the majority group at the Union government has complete control over the decision making process of the GST Council.

Concluding step in indirect tax reform

The introduction of the GST is the concluding step in the reformation of the indirect tax system in India. From an assessee and government point of view, GST enables ease of compliance, transparency on the exact amount of tax being suffered by goods and services, and ease of administration. From the perspective of the end consumer, the removal of the cascading effect of taxes will result in an immediate reduction on the overall tax burden on goods and services; and it is hoped that this reduction in the tax burden will in turn help bring down the cost of goods and services, moving ahead.

The Union government has repeatedly said that it intends to rollout the GST with effect from April 1, 2016. Hence, it is unlikely that the Central Government will undertake any major tinkering with the scheme of indirect taxation in the forthcoming Union Budget, especially considering that the it also intends to introduce the Bill in this budget session of the Parliament. Having said that, the forthcoming Union Budget can actually be utilised as a good opportunity to merge certain lesser avenues of taxation into the central excise and services taxes and also do away with a several cesses that form the body of central indirect taxation. Additionally, procedural compliances can be simplified and brought closer to a format that the Union government intends to adopt for compliances under the CGST. Doing so will not only ease the road for the introduction of the GST in its intended form, but also provide assessees a full twelve months to get accustomed to the compliance processes.

Gautham Gururaj is an advocate based in Bangalore.

Tags amendment of the Constitution, Centre-state relations, Goods and Services Tax, indirect taxes, taxation

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Be true to the cause, use litigation to support movements and advance the law

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Post date February 13, 2015
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“It’s that every now and again – not often, but occasionally – you get to be a part of justice being done. That really is quite a thrill when that happens.”

– Tom Hanks (as Andrew Beckett in Philadelphia)

Across generations, human rights lawyering is fundamentally driven by the passion of seeing justice done. For veteran advocates like the Punjab-based Rajvinder Singh Bains, passion may arise out of witnessing injustice and atrocities. Younger advocates, on the other hand, may be inspired by the work of path-breaking people before them, while also bringing newer perspectives and ideas to the practice. In either case, the passion for the cause is an essential element of being a human rights lawyer.

Beyond passion

Mihir Desai has three decades of experience with human rights lawyering.

However, while being passionate is important, being effective in court is even more important. “To be a good human rights lawyer, you have to be a good lawyer first,” says Mihir Desai, a veteran advocate and activist from Bombay. Mr. Desai, who has been practising for three decades now, is also the co-founder of the Indian People’s Tribunal on Environment and Human Rights (“IPT”), which describes itself as an “alternative People’s Court that gives voice to the struggles of grass-roots organizations and affected communities” and conducts investigations on human rights and environmental issues. He has worked extensively on human rights issues at the trial court level, and has been instrumental in bringing them into mainstream jurisprudence, through his litigation before courts, movements such as the IPT, and publications like Combat Law. Given the marginalisation of human rights issues at the trial court level, it is all the more important for a lawyer working in this field to have an excellent grasp of procedural as well as substantive law, which is why Mr. Desai encourages all young lawyers in the field to hone their skills in the courtroom.

Among these young lawyers is Rajat Kumar, 28, a graduate from the Gujarat National Law University, who has been practising at the courts in Delhi for just under five years. Headed down the standard National Law University path – with corporate internship after corporate internship, an internship with the Alternative Law Forum, Bangalore introduced him to the world of human rights lawyering and he was immediately attracted to it. A subsequent internship provided him an opportunity to work on the Narmada Bachao Andolan case, as part of which he made a visit to the site of the Sardar Sarovar Dam and interacted with displaced people. The realisation, like the one had by the protagonist in Philadelphia, that one was part of an actual process that was bringing justice to people, was a powerful experience that Mr. Kumar describes as life-changing, and he has never looked back since. After graduating, he joined the offices of Jawahar Raja in Delhi, and now works primarily on criminal and labour law matters.

Mr. Kumar argues most of his labour cases (where he represents workers’ unions) before the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985. Contract labour and regularisation of employment is also a major issue, and Mr. Kumar has argued the cases of workers who have been denied benefits due to them, and are trapped in sham contracts. He perceives that the scene for labour rights is not as positive as it used to be. With the increased focus on economic development, he said that there is a corresponding perception that courts are increasingly hostile and reluctant to grant relief to labour, citing the instance of the 2013 Punjab and Haryana High Court order denying bail to the Maruti workers who were arrested during the unrest at Manesar, which mentioned as a ground, the risk to foreign investment due to “fear of labour unrest”. However, as a human rights advocate, it is important to keep the faith and continue the fight for the cause.

Staying the course, true to the cause

Mr. Desai says that a good human rights lawyer works for a cause throughout. There cannot be any inconsistency in the stand that one takes on an issue. The human rights lawyer is committed to the issue and the advocate needs to let go of individual ego and think of the cause. Staying true to a cause also inspires greater levels of trust and confidence among one’s clients. This is why it is important, as a lawyer in this field, to choose one’s cases and remain committed to the cause – for instance, in a labour court, one cannot defend workers one day and managements the next. He clarifies that the right to legal representation is important, but so is the right of an advocate to choose her cases and causes: “An accused rapist is definitely has a right to receive legal representation; but I would not want to be his legal representative. And that’s a consistent stand I take.”

“Important to choose one’s cases and remain committed to the cause” – the 28-year-old Rajat Kumar.

The ability to inspire trust and confidence from one’s clients is critical to good human rights lawyering. To illustrate this, Mr. Desai draws on his experiences while arguing some of the Gujarat riot cases as a lawyer for the victims, where despite his perception that the judges were not supportive, he, rather than give up, continued to advance his arguments.

In such situations, where people have been at the receiving end of severe human rights violations and have lost everything except their faith in the law, it is particularly important that they are able to trust their lawyer. A good human rights lawyer should be willing to be there throughout for her clients, no matter what difficulties one might face along the way. Ultimately, says Mr. Desai, what the victims want is complete support and dedication from their lawyer and – irrespective of the final outcome – the feeling that they have been heard, and had their day in court.

Social transformation through human rights litigation

Mr. Desai said that a human rights advocate should be able to use the court process to help and support movements. Therefore, strategy and court craft are critical to the practice of human rights lawyering, even more so at the trial court. Mr. Kumar says that it is important for a lawyer arguing at the trial court to be able to anticipate arguments at the High Court or even the Supreme Court, should her case be dismissed or appealed against. This is particularly significant since the higher courts do not normally deal with matters of evidence. They usually rely on the evidence brought on record before the trial court. Further, while it is difficult to make a direct prayer for relief at the trial court based on a constitutional argument, it is nevertheless important to frame these arguments since even if they are rejected by the trial court, the High Court has the power to recognise them and grant appropriate legal relief. In this context an important part of human rights lawyering is to use arguments that may have not traditionally been accepted by courts. Thus, an advocate has to try at all times to expand the horizon of the courts’ human rights jurisdiction by advancing arguments in that direction, rather than restricting oneself to a narrow legal perspective.

Public interest litigation, or the use of the Cr.P.C. to obtain basic amenities from local authorities, are all examples of this approach. As K.G. Kannabiran argued, lawyering for social justice necessitates a certain stretching of principles and breaking new ground in order to advance the progress of the law as an instrument of social transformation.

Sustainable human rights lawyering

Both Mr. Desai and Mr. Kumar dismiss the misconception that practising human rights lawyering is financially unsustainable. Says Mr. Desai, “If your ambition is to have a Mercedes and stay in five-star hotels, it won’t be remunerative. But it is definitely sustainable in that it will help you lead a reasonably comfortable standard of living.” Both of them cross-subsidise their human rights practice with revenue from regular commercial cases. While accepting commercial cases, they remain conscious of the conflict of interest and only accept cases from clients who do not put them in a situation where they have to compromise on their human rights work or the causes that they espouse. In addition, they also point out that not all human rights work is pro bono – there are several clients who are able to pay, although in these cases one would have to charge according to the client’s capacity and not the regular fees that one would charge in commercial matters.

Personal and professional growth as an advocate is greatly helped by having a mentor in the profession. In this regard, Mr. Desai recalls his early days when he started practising in the chambers of Indira Jaising, who was then (as also now) a leading light in the field of human rights, and an inspirational figure and role model in the profession. Mr. Kumar is grateful to Jawahar Raja, from whom he says he has learned more about the law than he ever did in his five years of law school. It is not an easy practice – as Mr. Desai puts it, while in mainstream lawyering one might win 70 per cent of the time, as a human rights lawyer one might only win 30 per cent of the time. Nevertheless, both Mr. Desai and Mr. Kumar suggest that human rights lawyering is a passion, rather than a sacrifice – both of them whole-heartedly state that they enjoy their work and there is nothing else they would rather be doing.

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

Tags human rights, legal profession, manish on good human rights lawyering