legislature – the myLaw.net blog

A formula for decentralising justice

Recently, the Andhra Pradesh State Committee of the All India Lawyer’s Union (“the AILU”) organised a State Convention in Hyderabad. It highlighted the agony of the litigant public in going to New Delhi from distant places in South India to attend to cases in the Supreme Court, and demanded a bench of the Supreme Court for South India. Pavan Kumar presents a brief background to the debate.

Former Supreme Court judge, Justice Krishna Iyer, while inaugurating a similar convention of lawyers from the southern states, had observed: “A large number of the people in the country are below the poverty line and it is not possible for them to travel up to New Delhi for fighting their case in the Apex Court. The Supreme Court of India would become the Supreme Court of the people of India if it takes the lead in establishing benches in four zones of the country … If the bench of the Supreme Court had been set up for a while in Hyderabad and found useful, benches can be rationally and pragmatically set up in other centres where chartered high courts are functioning…”

Article 130 of the Constitution of India, 1950 (“the Constitution“) empowers the Chief Justice of India, with the approval of the President, to appoint a place or places other than Delhi, as the seat of the Supreme Court. However, none of the Chief Justices of the Supreme Court have yet favoured the invocation of this enabling provision.

Under the chairmanship of Dr. Justice A.R. Lakshmanan, the Law Commission suo motu took up the subject for consideration. It noted the dire need for a solution for the unbearable load of arrears under which the Supreme Court is functioning, as well as the unbearable cost of litigation for those living in far-flung areas of the country. The Commission also noted that the Parliamentary Standing Committee on Law and Justice (“the Commission“) in its Second (2004), Sixth (2005), and Fifteenth (2006) Reports has repeatedly suggested that in order to make speedy justice available to the common man, benches of the Supreme Court had to be established in the Southern, Western and North-Eastern parts of the country. The Commission finally recommended the setting up of a Constitution bench at Delhi to deal with constitutional and allied issues, and four ‘Cassation Benches’. A court of cassation is the judicial court of last resort and has power to quash (‘casser’ in French) decisions of the inferior courts. The recommendation was for such courts to be set up for the northern region at Delhi, the southern region at Chennai or Hyderabad, the eastern region at Kolkata, and the western region at Mumbai, to deal with all the appellate work arising out of the orders or judgments of the high courts of the particular region. (Click here to see the 229th Law Commission Report, August 2009.)

However, in February 2010, the full court of the Supreme Court (twenty-seven judges, led by Chief Justice K.G. Balakrishnan), rejected the Law Commission’s suggestion. In a unanimous resolution, the full court reiterated its stand that dividing the Supreme Court would affect the country’s unitary character. Previously, successive Parliamentary Standing Committees on Law and Justice have said that setting up benches outside Delhi “would neither impair unity and integrity nor undermine the importance of the Supreme Court.” Eventually, the Central Government also dropped the idea for the moment, relying on the reservations expressed by the Attorney General, Ghoolam Vahanvati.

The issue did not die down. Senior Advocate K.K Venugopal pointed out that instead of establishing more benches of the Supreme Court, the establishment of four regional Courts of Appeal would be a more effective means to ensure that the poorest litigant from the farthest corner of India has inexpensive and ready access to justice. According to him, four regional Courts of Appeal need to be established as final appellate courts, while restricting the Supreme Court of India to its true function as a Constitutional Court.

What do you feel is the correct formula to take the Supreme Court to all parts of the country? Tell us in the comments below.

The Rajya Sabha recently referred the Prevention of Torture Bill, 2010 (“the Bill”) to a Select Committee of Parliament. The ostensible purpose of this Bill is to bring the Indian law into compliance with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”), which India signed in 1997. The preamble of the Bill unambiguously notes that India is a signatory to the CAT, and that it is ‘necessary to ratify the said convention and to provide for more effective implementation’. What is surprising then, is the gaping discrepancy between the provisions of the Bill and the CAT. The structure of the Bill overall condones torture more than penalising it, and calling it the “Prevention of Torture Bill, 2010” seems rather ironic. This article will concentrate on the most basic difference between the two instruments: how the definition of torture contained in the Bill is narrow and fails to capture a lot of conduct that the CAT considers ‘torture’.

The Bill defines and punishes torture in clauses 3 and 4. A combined reading of these clauses suggests that a person will only be punished for torture under this definition if (i) they are a public servant, or have been abetted by a public servant, or have the acquiescence of a public servant, and (ii) commits an act that either causes grievous hurt, or causes mental or physical danger to the life, limb or health of the victim, and (iii) commits this act with the intention of extorting information or a confession which may lead to the detection of an offence or misconduct, and (iv) does so on some discriminatory ground. All four grounds must be satisfied before someone can be punished for torture under the Bill. This does not comply with the CAT for several reasons.

First, clause 3 read with clause 4 of the Bill indicates that only the person who actually committed the act of torture may be punished. A public servant who abets, consents, acquiesces, or conspires in an act of torture cannot be punished under the Bill. This does not comply with article 4 (1) of the CAT, which requires state parties to criminalise attempt, participation, and complicity in torture.

Second, the Bill only punishes acts that intend to extort information, or a confession that may lead to the detection of an offence or misconduct, and are done with some discriminatory purpose. The definition of torture under the CAT, however, delineates four purposes for torture. These are (i) obtaining information or a confession from the victim or a third person; (ii) punishment for an act the victim has committed or is suspected of having committed; (iii) intimidation or coercion; or (iv) discrimination of any kind. The formulation in the Bill ignores the second and third factors, and only punishes if the first and last factors are found simultaneously. Thus, if, as an example, grievous hurt by a public official for purely discriminatory purposes is not torture under the Bill, but is so under the CAT.

Third, clause 3 of the Bill defines acts that are committed with the intention of extorting information or a confession as torture. However, clause 4 (the punishment section) only punishes acts that intend to extort information or a confession that may lead to the detection of an offence or misconduct, and are done with some discriminatory purpose. Thus, many acts that amount to torture under clause 3 are not punished under clause 4. For example, grievous hurt caused by a public official to extort information that is not caused with a discriminatory purpose will not amount to a punishable act under clause 4. This inconsistency violates article 4(1) of the CAT, according to which each state must ensure that all acts of torture are offences under its criminal law. If an act is defined as torture but not punished, it would clearly violate this provision.

While the Bill does not comply with the CAT for many other reasons as well, the most startling fact that that it employs an understanding of torture that is far more restrictive than that the CAT mandates, while at the same time trying to comply with the CAT. The gap between the CAT and the Bill becomes more glaring when we examine the jurisprudence and development around the CAT internationally and in other national jurisdictions. It is therefore essential that the Bill’s definition of torture to be amended if the Indian state intends to realistically comply with the CAT.

(Sanhita Ambast writes on international law and international relations.)