Something About The Law

Since beginning in early January this year, we’ve had a fantastic response to our posts, events and online discussions. 2009 has been a happening year for the world and India, and that holds for us too. The graduation fromThe Social Blog has been phenomenally well-received by our readers, and thanks to you, Something About The Law can now boast of an extensive network among Indian law schools. We have a number of events/ideas in mind for 2010, and look forward to your encouragement and support. From the editors at SATL, here’s wishing you a fabulous year ahead!

Here’s a year-end compilation of some of our best (most-read, commented and appreciated) posts in 2009. They are in no specific order, and clicking on the title will take you to the full post.

1. The Socio-Legal Debates

Academic circles across premier law schools of the world have been characterized by the presence of an intellectual and interactive atmosphere among students and faculty members. In India, however, we are yet to see the inception of a platform that promotes stimulating, real-time legal discourse outside classrooms. In an attempt to bridge this scholastic divide, Something About The Law has sought to conceptualize a monthly debate-cum-discourse among legal practitioners, academia and experts on a host of socio-legal topics.

2. Attacks on Students: Reflections from Australia

The recent spate of attacks against members of the Indian community in Australia has spawned numerous allegations of racial abuse and discriminatory practice; the Australian Government is currently under immense pressure to bring such perpetrators to justice. The Indian media has whipped up a storm, devoting several hours of airtime to the matter; quite understandably, the nation is quite concerned with such disturbing developments Down Under. Amrita Khemka (a student from NALSAR who is currently at the University of New South Wales, Sydney on an Exchange Program) expresses her views on the matter. In addition, she has garnered diverse views from Indians who are currently studying/employed in Australia. Read on

3.  J.M Lyngdoh on Electoral Reforms in India

We are a nation of sorts; created out of the fundamentalist and acrimonious partition of the   continent’ Against this backdrop, India chose a democracy and have everyone participate in governance.

In the last 60 years, the constitution has had remarkable success. Significant is the involvement of the underprivileged in politics.

4. Musings on the Death Sentence

In 1994 Narayan Chetnam Choudhary committed the crime of murdering five women, one of whom was pregnant and two were children with a tender age of two and a half and one and a half years. In 2000 the Supreme Court confirmed his death sentence. Nine years hence, he lies in the jail at Pune wondering of the morning on which he would be executed.

5.  Child Sexual Abuse in India

The Children We Sacrifice, a documentary by Grace Poore, a South Asian feminist writer and activist of the Voices Unheard Sisters Unseen fame, deals exclusively with child sexual abuse (CSA). Though I haven’t watched the documentary, the message it seems to be sending across is this: CSA is an everyday reality for about half of India’s children, however, somehow, it remains the least undocumented offences in the country. It, therefore, is not surprising that no legislation specifically deals with the issue which can rightly be categorised as one of the darkest and most worrisome blots on the Indian society.

6.  Why Telengana is a terrible, terrible idea.

Much of this post has been the result of sudden and unsettling change – but I’ve tried to abandon my confessed status-quoism in discussing the future of a territory where I have spent a lion’s share of the last 5 years. It was rather unfortunate to be stuck in a train, far from live coverage, when news of a purported Telengana broke out. It was even more frustrating not to be in Hyderabad, when the exhibition of democratic dissent surfaced.

7.  The Collegium, Judges’ Assets and Justice Dinakaran’s Case

Below is a short version of my Speech for the Constitutional Law Society’s debate on The Collegium, Judges Assets and Justice Dinakaran. It was a laudable effort on the part of the CLS to organise the same and kudos to them.

8. Implications of a New Direct Tax Code

Neha Pathakji, Lecturer in Taxation Laws at NALSAR, writes on the proposed Direct Tax Code, and its impact on the society.) The nation is witnessing winds of change these days, especially in the age old Tax system. Just when a new indirect tax regime is round the corner in the form of GST(Goods and service tax), likely to be implemented in April 2010; the release of brand new Direct Tax Code has leased a fresh life in the Direct Tax system.

9. The Downs – and Ups – of Free Distribution

Why are text messages limited to 160 characters? Why not more – surely we seem to have a lot to say to each other – or less? Why not 200, or even 150? A recently published article in the Los Angeles Times reveals a fascinating, yet somewhat disturbing, story.

This is the 300^th post of this blog and we have come a long way from scratch to be where we are today. The credit to this goes to support received by our readers, classmates and friends in the legal community and each of us authors as such.

I couldn’t think of a more fitting post that to tell the readers of Mr. Andhyarujina’s recent article on the Keshavananda Bharti Review. Printed in the latest SCC [(2009) 9 SCC (J) 33], many may not even be able to read this article. I had the good fortune though to get an account of this incident from Mr. Andhyarujina himself while I was interning with him in December 2007. This was perhaps one of my best internship experiences and influenced me to pursue a career in litigation.  He also gave me copies of the review transcript as appearing in Mr. Prashant Bhushan’s book.

In the Article, Mr. Andhyarujina starts off by saying that very few of us know that the momentous judgment of Keshavananda Bharti was subjected to a review in 1975. It took place during the height of the emergency when even the reporting of Court’s judgments by the press was restricted. While giving a historical account of the review and what happened by referring to the transcript in Prashant Bhushan’s book and the books of Justice Krishna Iyer and Nani Palkiwala, Mr. Andhyarujina also treads on the eloquence of Nani Palkiwala and the impact of the review on constitutional democracy.

“While the first objection of Palkhivala did not receive serious consideration, the later objections of Palkhivala had a powerful impact. Argued with great force and eloquence he held the Court and spectators spell-bound. Palkhivala was at all times a master of advocacy when he developed the unacceptable consequences of a situation in law. He did this with telling effect in this case, sometimes derisively countering the theory and its vagueness and uncertainty. Several observers, including Justice HR Khanna, who saw Palkhivala’s performance that day believe that the height of eloquence reached by him on that day will never be surpassed in the Supreme Court.”

Elsewhere, after giving an account of the two day proceedings before the bench was abruptly dissolved, he states,

“On the next day, 12.11.1975, the bench assembled to a packed Court for a resumption of arguments. Hardly had the 13 judges taken their seats when to the Surprise of all the Chief Justice stated “the Bench is dissolved”. He observed that for two days the arguments were found “to go in the air”. …..

…… The sudden end of the review hearing took everybody in the Court including Palkhivala by surprise. The reason for it has remained a mystery till now. What was the reason for it? We now have some revelations. It appears that Palkhivala’s arguments that there was no case in which the Court had found difficulty in applying the basic structure had made a big impact on some judges.”

As law students, we have always been in awe of the Keshavananda bharti judgment. I do recollect instances when most questions in the law school entrance exam hovered around the bench strength and issues in the case. So much so, quoting this lengthy judgment in a moot was like sounding a death knell. It took us a week to be taught the whole judgement by Prof. Errabi in a memorable constitutional law class. Nevertheless, most of us may never get to know of such an incident unless we read articles of the kind written by Mr. Andhyarujina.

For me, it was also a joy to read Mr. Prashant Bhushan’s book referred above titled “The Case that Shook India”. It is a book that gives a factual description of the proceedings in Indira Gandhi v. Raj Narain. Gripping as it was, it was also a refresher in the sense that it was so much more detailed than mere legal opinions as given in the case. Not surprisingly though, we do not have many books written on our landmark cases while the same are abound in other jurisdictions. The period of the 1970’s itself is one abound in Indian constitutional history and unless such articles come to the fore, we may never get a chance to know about such incidents and the historical and factual basis on which they proceeded.

PS: Please also do sign up for the Legal Newswire.

The stance of the Board of Cricket Control of India (BCCI) as regards the ‘whereabouts’ clause of the WADA just doesn’t make sense. According to latest reports, the players and the BCCI have stated that the said clause violates their right to privacy as guaranteed under the Indian Constitution and Article 19 (1)(d) that guarantees the right to every person to move freely within India.

These rights are guaranteed and there’s no denying that. But these rights are guaranteed by the STATE and not any private organization. In Zee Telefilms v. Union of India, the Supreme Court clearly held that the BCCI is not a state under Article 12 of the Constitution. What then comes out of this judgment is that the BCCI cannot say that they would be violating the rights of its players by this clause because they are not an ‘authority’ under the Constitution that guarantees them.

Rights are to be guaranteed by the State and not any private body. So when a private body like the BCCI says that it is obliged to provide for these rights under the Constitution, the statement doesn’t make sense. Are we then looking at an admission that the BCCI is a ‘state’ under the Constitution ?

The past few weeks have seen the UPA Government taking a positive stand on various issues. Distinct among them being the rethinking of the application of the Armed Forces Special powers Act, issues related to terrorism and more recently the recently passes Right to Education Bill, 2008.

After the 86^th Constitution Amendment was passed in 2002 making the Right to education for children between the ages of six to fourteen a fundamental right under the Constitution, there was not much action on the part of the executive to implement this right. This Bill is now looked as an enabling legislation to give effect to the above Constitutional Amendment. After the Rajya Sabha clearing the Bill earlier, on Tuesday the Lok Sabha passed the Bill thus awaiting assent of the President of India.

Article 45 of the Constitution provides that the state shall strive to provide for free education of children below the age of 14 within ten years for the commencement of the Constitution. It has taken 60 years, a Supreme Court case and a constitutional amendment for us to do today what should have been done as early as 1960. While directive principles are not mandatory in nature, this is one of the few that prescribed a time limit for the state to follow and was however still dependent on the economic resources of the state. Even today, issues are being raised whether the state can financially afford to provide for this right and critics thus cast doubts on the implementation of the bill.

While this is the understanding plainly of the directive principles under the Constitution, in Unnikrishnan v. State of Andhra Pradesh, the Court came out with a clear view on the place of education in the Indian legal system when it pronounced unequivocally that “the right to education, understood in the context of Articles 45 and 41, means: (a) every child/citizen of this country has a right to free education until he completes the age of 14 years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development”. Thus stating that the economic capacity of the state was not a justified reason for the non implementation of Article 45.

Issues; when the constitution says that the Right to education shall be provided to all below the age of 14, why is it that the act gives a statutory right to education only to those between the ages of 6- 14? i.e. what happens to the kinder garten education of the children below the age of 6 ?

Would a budget allotment of 6 % be enough to accommodate for the provisions of this statute ?

PRS Legislative Research has a good critique of this Bill and readers may read it here .

Post script : To quote Prof. Amita Dhanda from my poverty class, the reason why the Right to Education Act is special is because it not only provides for a statutory right to education but has also made a commitment to setup and monitor the functioning of schools and looks at the maintenance of standards within these institutions.

I read somewhere, when one increasingly talks of democracy, it should be construed to mean a movement by the majority to suppress the rights of a minority. Can’t recall where I read it, but thought that there was in inherent fallacy in that statement. However, if one were to look at the recent amendments to the Gujarat Control of Organised Crime Act (GujCOCA) he or she would agree with that statement as I have. 

The Unlawful Activities Prevention Act does not remain the harshest penal statute anymore. Gujarat has clearly beaten the Centre in this case. The President (indirectly the Union Cabinet) had suggested changes to three crucial amendments to the State bill, which the Gujarat gov. rejected and passed unanimously. These include;

- Making confessions before a police officer legal

- Extending the period of detention of a person standing trial from the present 90 days to 180 days. This also includes increasing the time period for a police custody and filing of a chargesheet. 

- that courts cannot grant bail to an accused without hearing the public prosecutor.

The UPA government did try to take a ‘more humane’ approach to the Bill by asking the Gujarat Government to amend/ delete certain provisions. However, in a political tussle, Modi, as usual accused the Centre for being soft on terror. It is funny how asking a government to make its laws in consonance with rights and the Constitution constitutes being ’soft on terror’. In this case, should be expect another Kartar Singh or PUCL ?

News item here.