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.

This is a court of law, young man, not a court of justice

- Oliver Wendell Holmes

When Khalid Sheikh Mohammed and four other self-confessed perpetrators of the 9/11 attacks stand trial in the Southern District Court of New York  next year,  something about the law that’s unique to the justice system in such high-profile, polarizing instances will come to light.

Its indeed an “honourable” decision to put the detainees to task within the framework of the legal system (see The Hindu’s editorial today) – it would have been far more easier to hold the trial in a military tribunal – and probably come out with the death penalty. In a country where the death penalty has its ardent supporters, even its vocal opponents would’ve hesitated to challenge the verdict in such a heinous act. Sure, the prosecutors would’ve had trouble with issues of torture and waterboarding – but when the jurisprudence of a nation is emphatically in support of the ‘national security’ paradigm, in comparison to the ‘civil liberties’ one, no earth-shattering conclusions are expected.

So why is the case being referred to a civilian court, where the standards are admittedly higher than in military commissions? Does it signify the Obama administration’s commitment to human rights and fair trial? Yes and No. The whole process is angled at Gitmo’s closure, and to move the detainees to a high-security prison near Illinois. And a trial under federal laws is necessary to move them to federal soil, for which the Congress must be given prior notice. Incidental, is the encouragment given to a proper hearing; or rather, it is the price of closing Guantanamo Bay. After all, the detainees must be ‘disposed’ before the facility is closed!

But that’s a debate for another day. What the administration does not realize (or probably does, but is helpless) are the law’s ‘fancies’, to be a little dramatic. When KSM has been waterboarded no less than 183 times, and his comrades tortured to equal extents, will the NY Court accept a confession made under such circumstances? Will jurors,  sworn under oath and required to be selected from the Southern District – minutes away from Ground Zero – be really unbiased? Can the classic doctrine of ‘personal interest’ be really effective here, when jurors have lost friends, families and relatives? And at the end of it all, will the Court actually consider the confessions vitiated, even as the glare of the public eye gets stronger by the day?

There’s no point in calling these trials a farce, as we now realize that something about the law which is unique to cases of such nature. When Kasab, now being tried in a lower court in Mumbai for 26/11 confessed, Judge Tahilyani took the confession on record and sought to continue with the hearing. He could afford to do that, knowing full well that an expected result against the young terrorist will now be substantiated by his own words, while presenting the judgment as an evidence-based verdict. Similarly, when Khalid Sheikh and his fellows have confessed, the inadmissibility of such evidence is not really relevant. Sure, there are thousands of documents and testimonies waiting to be presented in Kasab’s and KSM’s case (heck, Kasab was caught on national television during the act). But if one looks closely, these are frivolous compared to that single statement of admission that the trial must extract, to mete out maximum punishment. But in the process of extraction, there is a disconnect between what society wants to hear, and what the law says about making the detainee say it. And therein lies the problem of balancing the law and pandering to public pressure.

Justice, as it is said, must not just be done, but must also seem to be done. Will justice seem to be done if Sheikh is let off with a lesser punishment,  if he decides to retract his confession  and claim a mere minor involvement in 9/11? (Kasab has sought to do exactly this). The law must act against torture, and the standard to award the death penalty is high. These standards must go beyond moral aspirations – but then, is the law’s justice equivalent to the people’s sense of it?

In a recent speech made to the “National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays”, Chief Justice Balakrishnan talked about the root causes why courts in India are overstuffed and breaking in. His speech identified two such reasons, very broadly: (1) shortage of judicial officials, and (2) inadequacy of budgetary allocations.

Balakrishnan observed that on the one hand, poverty, illiteracy and status-based discrimination played a major factor in access to substantive justice at all levels in the system, and on the other, disparities existed on an inter-state level as well, with more educated and more developed states being significantly more involved in the judicial process.

Coming down to the specifics of what areas could be specifically targetted by policymakers, he identified three areas:

1. Manpower Planning
2. Physical Infrastructure &
3. Procedural Innovations.

for actions of concerted reforms.

The problem of manpower planning concerns the enormous vacancies in the system, and the dispairing lack of quality professionals to fill those posts, (the):

reason being the numerous lucrative career options that are open to law graduates. It is also perceived in many quarters that it is only those who are unable to build a practice of their own, who appear for the judicial services
examinations.

Balakrishnan mentioned improving pay-scales and service-conditions, as also a commensurate improvement of prospects for career-advancement as practicable reform sectors. Notable in his speech was the suggestion, often mooted before, of the creation of an All India Judicial Service (AIJS) that would function much like the existing system of the UPSC, except that state preferences would be given more weight because of the language barrier to chosen practitioners.

With regard to physical infrastructure, KGB mentioned primarily the ‘implementation of technological solutions’, and the introduction of computers at all levels of the judiciary.  Finally, procedural innovations involve the growth of alternative dispute resolution mechanisms, out-of-court settlements, plea-bargaining systems etc, which would ensure that the judiciary is, essentially, left only as a matter of last resort.

The full text of the speech can be accessed here.

Chonira Belliappa Muthamma, the first woman to appear for the Indian Civil Service Examinations (1948) and join the IFS (1949), passed away on Wednesday, October 15, 2009 at 85. Muthamma was the first woman career diplomat, and the first woman Ambassador from India.

From The Hindu : -

C.B. Muthamma, India’s first woman career diplomat and first woman Ambassador, died in the early hours of Wednesday in a Bangalore hospital. She was 85.

Opting for the foreign service after she passed the civil services examinations in 1949, Ms. Muthamma served in her diplomatic career with distinction in many capacities in Europe, Asia and Africa. In 1970 she was posted as India’s Ambassador to Hungary, the first woman from within the service to be appointed Ambassador. Later, she served in Ghana and her last posting was as Indian Ambassador to The Hague.

Ms. Muthamma will be most remembered for her successful crusade for equality for women in the male-dominated Indian civil services of her time. She brought a petition against the government of India on the ground that she had been overlooked for promotion, arguing that the rules governing the employment of women in the service were discriminatory. Her case was upheld in 1979 in a landmark judgment by a three-member Bench headed by Justice V.R. Krishna Iyer. The court impressed upon the government of India “the need to overhaul all service rules to remove the stains of sex discrimination, without waiting for ad-hoc inspiration from writ petitions or gender charity.”

Born in Virajpet in Coorg in 1924, Ms. Muthamma completed her schooling in St.Joseph’s Girl School in Madikeri, and graduated from the Women’s Christian College in Chennai (then Madras) with a triple gold medal. She did her post-graduation in English Literature from Presidency College, Chennai. She retired from the IFS in 1982 after 32 years of service. Following this, she was nominated as the Indian member of the Independent Commission on Disarmament and Security Issues set up by the then Swedish Prime Minister, Olaf Palme. She continued to write prolifically and on a range of interests during her retirement, from a collection of scholarly articles titled “Slain by the System: India’s Real Crisis” (2003) to a cookbook on Kodava cuisine.

—

Please find the complete judgment in C.B. Muthamma v. Union of India & Ors here.

Her interview with The Hindu (2003).