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 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?

Slightly along the lines of an older post on why sharia is “bad for society”, here is a fantastic article I came across yesterday. It appeared in the Foreign Policy (FP) magazine in April 2009. Neil MacFarquhar writes about how the concept of fatwa, originally meant to signify any direction from a learned cleric interpreting complex matters of Islamic law in the light of contemporary situations, has been twisted in popular imagination to mean, essentially, “Kill ‘em all.” Much thanks, as MacFarquhar points out, to the Ayatollah’s  issue with  Mr. Salman Rushdie …

But actually a fatwa, which simply means a legal opinion drawn from religious law, can be devoted to any topic, large or small, and the devout seek them out constantly like grease that smoothes all manner of daily decisions. Throughout the Islamic world, religious scholars issue fatwas on questions ranging from household quandaries to major issues of public policy. Often expressed in one terse sentence, fatwas can address mundane questions like whether a Muslim woman should ride a bicycle (usually not — too publicly physical) or if a man ought to wear soccer shorts (only if they modestly come below his knees even when he sits down).

Do take some time out to read the rest of the piece, it’s brilliantly written, and winds up with an ironical admission of exactly why the term has come to signify the battle between tradition and modernity, between Islam and the West, between Us and Them.

The variations on a common theme seemed endless. One  pamphlet declared that having music as your cell phone ring tone was forbidden; another denounced the Western practice of bringing flowers to hospital patients. (No Muslim ever did so in ancient times so it was clearly aping the infidel rather than benefiting the patient and therefore taboo.)  Ceremonies modeled on Western practices, like passing out awards to 47 exceptional teachers on something called International Teachers Day, were decried as shameful. I read one tract that fulminated against credit cards, saying it was a sin to use them because it meant paying interest, which Islam bars. Another leaflet, distributed by an organization called The Office to Propagate Spiritual Guidance in Jidda, warned, “If non-Muslims greet you on the occasion of Christmas or the New Year, you should not reply to them,” explaining, “What you think might be courtesy in these matters is actually acquiescence in religion.”

It is precisely the interpretive nature of the fatwa itself that leads to all its problems in today’s world. Allowing such a huge amount of discretion in the hands of (usually) one man smacks of danger prima facie – the fatwa, as far as I see it, leaves practically no room for debate. Individual fatwas are strictly speaking legal opinions (“the law says this, therefore you should or should not do this this this”) – the problem begins when they take on the directive and mandatory character that they do.

I have no idea how Muslim countries manage to function at the public level. Full credits to those that do, given the almost limitless scope for conflict in terms of opinion regarding the Way to Live Life.

I was at Dantewada when there was a protest against the detention of Binayak Sen at Raipur. Four students from the Indian Institute of Sciences at Bangalore had attended it from where they decided to pay a visit to the Ashram (now demolished) at Dantewada. Very enthusiastic people I must say. From what I reckon by the interaction with them, they came to see the real picture and injustice in that Godforsaken state.

Before I met these guys, I was appalled and quite critical of the movement for the release of Binayak Sen ( see item here ). Mostly because a majority of the people I met who fought for his cause, looked at this incident separate from the violence and the atrocities in Chattisgarh. Most didn’t even have a clue as to what was and is happening there.

Its perhaps one of the best things that Mr Sen has been released now. Better now though late then never. My concern however, is as to what would happen to the movement against the Salwa Judum now.?Would all those intellectuals, science graduates and members representing the civil society who conducted protest marches for him, still stand up for the injustice in that area? Why, just day before yesterday, there was a huge protest over his detention in Mumbai!

Stalin’s idea of a single death being a tragedy and a million a mere statistic rings a bell in my mind. The inhuman treatment of Binayak Sen received more favour than that thousands killed and many more displaced in Dantewada and Bijapur. Media itself doesn’t seem to present that disapora any more.

I don’t mean any disrespect to Binayak Sen or the campaign itself. I am more concerned about its future because there is a bright possibility that the movement against the existence of the Salwa Judum might come to a stand still because people might just stop caring anymore. Something that I would think to be anathema to the entire campaign itself.

A referendum is currently under way in Venezuela where voters are to decide on a proposal that would assist elected officials in seeking as many terms as they wish. Mooted by the Hugo Chavez-led Government, the proposal is set to be a watershed in the political landscape of this South American country. A similar referendum was narrowly rejected in 2007 and there seems to be extensive campaigns from ‘pro’ and ‘anti’ groups to mobilize voters.

If the 2007 proposal sought to extend the presidential term limit, this year’s constitutional amendment will cover gubernatorial and state political posts. The move to push forth for such a change has evoked mixed reaction from the public, in and outside Venezuela. While critics believe that the referendum is designed to facilitate a concentration of power on the President’s hand, Mr. Chavez himself believes that the extant regime offers little scope for a constitutionally elected leader to function effectively.

“Ten years is nothing,” Mr Chavez, whose term expires in 2012, said at a news conference on Saturday. “I don’t know what they’re complaining about.”

As to whether the Venezuelan voter agrees to give the right of unlimited terms to its leaders in power will be clear within this week. Campaigning has acquired great intensity and the move will certainly reflect on the country’s future in coming years.