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.

The screenshot’s from Serve.gov, a U.S State website that encourages community service and volunteer work. Ever since the Obama administration took office at the beginning of the year, the White House has embraced online social interaction, using tools like YouTube, Facebook and Twitter to facilitate a two-way flow between Government and civil society. Web 2.0, which is the collective term for new age tools of online interaction, was instrumental in Obama’s successful presidential campaign, and his office was quick to realize its importance in governance as well.

Compare this to the situation in India, where online interaction in the administrative sphere is viewed with great suspicion. Ministry websites are archaic relics, often providing outdated information, with little avenue to obtain feedback and viewer response. The functioning of the bureaucracy is veiled from public glare, with direct Government orders in certain cases (for Foreign Service officers) against using social networking tools in office. There’s no wonder then,  why the Right To Information Act has been so successful, as it provided a much-needed gateway to information that had been hitherto been unavailable.

Instead, a case may be made out for  the State to employ tools of Web 2.0 , which is not only an espousal of the democratic cause, but minimizes the burden on the RTI. As it stands now, the Act of 2005 mandates an RTI Link in websites of all public organizations/institutions. If such information were to be provided using modes of online interaction, tensions would be eased and would also foster a sense of participation amongst citizens.

A number of arguments may be pre-empted against employing such modes of interaction. The most important one is with regard to the user base that uses Web 2.0. Admittedly, it is not a priority for the rural citizenry, and is rapidly burgeoning primarily amongst the urban middle and upper classes. Yet,  social networking only augments e-literacy – basic e-literacy programmes employed in several Indian states have been found to be hugely successful. Thus, addressing the problem from the spectrum of necessity is bound to yield results.

What do I mean by this? For the urban classes, online interaction is aimed more towards the end of social and business networking, and an increasing need to stay connected for personal and professional reasons. For rural India, concerns lie elsewhere, in economic sustenance and a constant source of livelihood. At the same time, the latter constitutes our biggest electoral base, and it is important that informed decisions are taken in exercising franchise. Thus, it is the rural segments that stand to benefit from Govt-initiatives that promote a two-way flow of information online.

In addition, the advantages in building on extant social welfare measures are many if Web 2.0 is employed. Lets take the instance of using Twitter for an NREGA social audit. Twitter can be effectively employed to publicize the aims and agenda of the social audit (not just to villages, but also in cities and towns), the minutes of the social audit meeting and conclusions from it, and thereby bring larger public participation into the process. True, it requires villages near and remote to have steady internet connections and proper training (through e-literacy programmes) – but it is a heady investment and can reap significant benefits. Twitter is just one example – even Facebook can, say, be used in scheduling a public gathering for an RTI meet or a social audit and to create campaign groups in rural environs as well. YouTube could be  a forum to create channels and upload videos of these social audits and meetings. If outsourcing businesses to rural india is the new trend (see a NY Times article on the same), LinkedIn can be used as a potential employee database, without involving middlemen.

Its easy to dismiss the idea as far-fetched, purely because it needs strategic planning and considerable investment. But at a time, when ‘headless’ rural-to-urban migration is the norm, generating innumerable slums and acute living conditions for the poor, online connectivity can go a long way in  measuring the public pulse – consequently, improving governance and ameliorating torrid conditions of livelihood.

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?

Law #2004-228 of March 15 2004, commonly known as the French law that bans the wearing of conspicuous religious symbols in public schools, seems to be a stale and old issue. Or is it? The answer is a NO because of three reasons:

1. Though the language of the 2004 law is neutral and applies to conspicuous symbols of any religion, popular allegations against it and some evidence of its actual implementation, to which I will come in a moment, shows that the Muslim headscarf or hijab is the actual target of the ban. This has important and controversial aspects cutting across political, social and sometimes racial dimensions considering France is home to the second largest Muslim population in Europe and some of the Muslims are immigrants from former French colonies of Northern Africa. (For a general history of the law, see here)

2.  Law relating to such a ban is not confined to France but is a Europe-wide phenomenon with similar laws in Turkey, Germany and Belgium. Most recent practices of such sort without any law to authorize the same have been observed in Canada and India.

3. Following severe criticism from all spheres of international community in the last five years, France is contemplating a separate law banning hijab and possibly the burqa.

The validity of the 2004 law has been upheld, most recently by the European Court of Human Rights in Dogru v. France and Kervancki v. France (both decided in 2008).

In one of my several attempts to find contemporary relevance of jurisprudential analysis, I find it interesting to think about the 2004 law through the minds of Pound, Habermas and other jurists belonging to the sociological school of jurisprudence. This post is thus an effort at linking up philosophy of law and the law. Lest it should read like drudgery, I will make some quick points: (lets just talk of hijab and the Muslims of France who technically constitute a religious minority)

a) According to Jürgen Habermas, laws are valid only when all affected persons are given equal opportunity of communication in the rational discourse of making the law, the discourse being public and inclusive. Irrespective of several official surveys stating that majority of the French and even Muslims perhaps supported the law, the fact remains that the Muslims did not know how the members of the Stasi Commission were chosen, only one woman who actually wore hijab, out of 120 people, was interviewed by the Commission, the French Council for Muslim Faith representing the Muslims of France was not consulted and thus no opportunity of political participation/discourse in law-making was given to a group most affected by the law.

b) Roscoe Pound, the father of sociological school, (interestingly, he turned to law after obtaining his doctorate in Botany and served as the Dean at Harvard Law School for several years), insisted upon socio-legal study in the preparation of law making and a just individualized application of the legal precepts. All seem to have gone for a toss with respect to the 2004 law. No attempt was made by the Stasi Commission to find out what wearing hijab actually means to Muslim women. It was hurriedly dubbed oppression. The social waters thus remained untested before the law was to be in place. After the law found home in the statute book, school administration went bonkers with its implementation expelling students who wore not only hijab, but also veil and the bonnet. Children, in particular the girls, were found to be in need of psychological treatment after the whole process of sort of quarantining and expulsion. (For a full report of the aftermath, read here)

c) The 2004 law is often sought to be defended on grounds that it activates a most-needed divide between the public and private sphere, particularly with respect to the constitutional principle of separation of state from church in France (also known as laïcité). Ronald Dworkin once stated that notions of public-private are flexible with changing times. What is private today may very soon be seen as public or vice versa. Muslim women find it hard to get accepted in private employment/education once they have been expelled from the public spaces for refusing to remove their hijab.

The sociological school studies the actual function of the law in its sphere of action. The actual function of the 2004 law is unknown, at least officially, since no review of the impact of the law has been carried out by the French government though the requirement of such a review exists in the 2004 law itself and should have been fulfilled in 2005. Even in its Sixth Report to the CEDAW (2009), France cited no evidence to support the claim that the law was actually working.

Several issues relating to human right violations (irrespective of the fact that E.Ct HR has upheld the 2004 law), constitutional complexities and political angles of rights of religious and racial minorities in France still persist and are bound to resurface given the latest attempt at a separate new law on the subject. However, when we examine the law through the tenets of the sociological school and nothing else for the moment, we find it fails the test in all respects.

The Jet- Airways stand off with its pilots seems to be a very interesting case to study. The history of this situation is that  the airline pilots do not have any union and being contract employees can be shown the door anytime. The current financial crisis may the lives of the younger pilots even tougher with a whole lot of them being laid off.

So when the National Aviators Guild was formed, the Jet Airways management sacked two of its pilots for playing a role in the formation of the Union. Thus, the strike was announced. Jet rushed to the Bombay High Court that ruled the strike to be illegal and prohibited the Union from going on strike by virtue of Sections 22 and 23 of the Industrial Disputes Act. Further, since the matter was pending before the Labour Commissioner, it was asked that the dispute be resolved via that medium as soon as possible.

The Union still went ahead with the strike by taking mass sick/ casual leave as a result of which a large number of people were inconvenienced by virtue of flight cancellations and unavailability in other flights. The NAG at the same time filed petitions in the Madras High Court against Jet Airways on the hiring of expats for the job.

This situation is a revisit of the classic days of socialism where big ole Corporates hated that their employees form unions and took actions against them. I was reading Clarence Darrow on this and am now amused by the strong semblance of his work to modern day times. Those in power always seem to want to bend the law to their advantage and take action against those for whose protection the law is meant. In the case of Jet- Airways, this is possibly being done in the following ways;

1) Till a little earlier, the airline had refused to declare itself an industry under the Industrial Disputes Act(though the SC a few years ago ruled otherwise in the case of Air India). Now they have used it to their advantage and stated that the strike by the pilots is illegal and got an ex parte order from the Bombay High Court restraining the NAG from striking.

2) It has been said that the Centre is planning to invoke the Essential Services Maintenance Act (ESMA) on the situation so as to compel the pilots to fly or else face criminal prosecution. The law is to be in an extremely rare situation.

3) The Centre and the DGCA are also planning to move and Amendment to the Industrial Disputes Act, 1947 so as to remove Airline pilots from the definition of workmen from the Act. This way, they can never legally form unions and go on strikes. The apparent rationale being that since they get paid a lot, the benefits of the ID Act should not avail them.

Like I said earlier, I was amused to look at the various ways Jet (the big guys) were planning to use the law to their advantage. The right to form a Union is the essence of any socialist state (including India) and apart from the Constitution, it has also been codified in the Trade Union Act, 1926. The right to form an union has never been in dispute as such. In 1995, the Supreme Court in Tirumala Tirupati Devasthanam v Commissioner of Labour (1995) Supp 3 SSC 653 stated that any group of employees has the right to form an union under the Trade Union Act, the only rider being that it has to be registered. The crucial point is the it uses the word ‘employee’ rather than ‘workmen’ and this rebuts the contention of Jet that they cannot form a Union because they are not workmen under the ID Act.

Thankfully, the standoff has ended and the Jet pilots have decided to start flying with immediate effect. The negotiations ended with the formation of a grievance committee consisting of both pilots and administration members to hear such cases.