Tag Archives: Constitution of India

A chance to score a judicial point

In the Justice Karnan row, the judiciary can demonstrate that they will not flinch on accountability

The controversy is entering unseemly territory. Yet, it has presented a never-before opportunity for the judiciary to score an important point in the scheme of constitutional

 

At every stage of being disciplined, Justice C S Karnan has made society suspend disbelief. He has been purporting to pass unprecedented ex parte orders against of the Supreme Court, among others, directing the Chief Justice of India and other not to travel out of India so as to “prevent them from infecting” territories outside India with their anti-Dalit attitude. Whether Justice Karnan’s conduct is contemptuous of the judiciary, whether he is at all of sound mind, and what, if any, the punishment for contempt should be, may eventually be determined judicially. However, there can be no doubt about one fact — his behaviour is eminently impeachable.

 

At the time of this column going to press, no one in authority has used the i-word. The very thought appears to be far removed from serious consideration.  Reasons vary. Some believe that it would be meaningless to do so with the judge having just weeks left in office. Others feel that a judge being impeached would tarnish the history book. Leaving aside what reasons compete for keeping away from impeachment, here is a simple political thought.

 

Impeaching a judge of a high court or the Supreme Court is, for all the right reasons, a tough task. Misconduct by a judge can be lightly alleged by any party unhappy with a judge’s decision. In every litigation, there is at least one party unhappy with the outcome (at times, all parties can be unhappy, but such is life when differences cannot be resolved mutually). Arms of the state, in particular, governments, government agencies and the bureaucracy are the biggest contributor of litigation in the country. This renders vulnerable, and unless effectively protected under the Constitution, it would be impossible to have a credible and respected judicial arm of the state.

 

The constitutional tension and between the executive arm and the judicial arm of the Indian state has been typically informed in recent times, by the debate on It is no judge’s case that must not be accountable at all for misconduct, but it is vitally important to ensure that misconduct is not lightly alleged. The constitutional amendment to change the manner in which are selected and tested for accountability, and the amendment being struck down, has been the high point of this constitutional political tension in the past two years.

 

Now, presents a fantastic opportunity to the judiciary. No judge in the higher judiciary has presented a stronger case for being impeached. Impeachment requires elected members of Parliament to speak up and act. To impeach a judge, misbehaviour or incapacity has to be proven as grounds for tabling an impeachment resolution in any House of Parliament.  In the Lok Sabha, 100 members have to come together to set the ball in motion while in the Rajya Sabha, 50 members would do.  The Speaker in the Lok Sabha and the Vice-president who chairs the Rajya Sabha have to accept that a motion to impeach a judge may be tabled. Each House of Parliament is required to vote with a majority of not less than two-thirds of the members present and voting.

 

At every stage of being disciplined, Justice C S Karnan has made society suspend disbelief. There can be no doubt about one fact - his behaviour is eminently impeachable

At every stage of being disciplined, Justice C S Karnan has made society suspend disbelief. There can be no doubt about one fact — his behaviour is eminently impeachable

If our politicians are serious about judicial and the need to bring to account, an impeachment motion for should be a sitter. Reality is different. The political system will bring into motion the conventional political dynamics for the vote. Justice Karnan’s defence of the indefensible is largely based on one single point — that he is being targeted on caste-based lines because he is a Dalit. Dalit Members of Parliament could call his bluff if they so desire. A government that is said to be committed to finishing off caste-based — with a beginning having been made in the Uttar Pradesh elections —and indeed, said to be committed to bringing in an era of judicial accountability, should easily find 100 members in the treasury benches of the Lok Sabha or 50 members in the treasury benches of the Rajya Sabha to do the task of setting the ball in motion.

 

If Supreme Court were to transparently (read, publicly) ask for such a motion to be passed, it would set the cat among the pigeons.  Parliamentarians would have to deal with having been called upon to play their constitutional role — something they say they are keen to see do properly. And, if Parliament flounders, whether on caste lines, linguistic lines, or indeed any political lines (the nuanced and intense floor management in the 1990s when Justice Ramaswami’s impeachment motion was considered by Parliament comes to mind), the judiciary would have proven its point — that the judiciary will not flinch from taking to the logical and ultimate end, and it is the political system that is unable to handle it. It would prove to Indian society that the legislative obsession with how are appointed, while important, is not founded on outcomes but on the of who may occupy high judicial office.

 

On the other hand, if Parliament indeed acts to impeach Justice Karnan, that would in itself be a milestone in India’s constitutional history. Not one judge having been impeached in the Republic’s seven-decade history is not a nice sign. It is a pointer to the checks and balances built in by the founding fathers of the nation not having been put to use at all. If politicians play the usual card of convincing the judge to resign midway during impeachment proceedings, the judiciary would have still made its point that it is unflinching in calling upon the system to work towards So, the situation presents a win-win opportunity that is waiting to be seized.
This piece appeared in the column titled Without Contempt in the editions dated May 25, 2017 of the Business Standard

It’s a tug-of-war out there

By Somasekhar Sundaresan
It is by far the boldest move in executive governments pushing the envelope in breaking the law with the very process of law-making. The current government has piloted the Finance Act, 2017, through to get substantial legal provisions passed without the scrutiny of the

 

Many appellate tribunals that hear appeals against orders by regulatory authorities have been wound up for being merged with other tribunals —essentially, changes in institutions that were set up in the first place, with the approval of both the and the Constitutional courts may be visited with challenges to the abuse.  But not much may happen there. The has an inbuilt check and balance in the office of the Speaker of the She has the last word on whether or not a proposed law is a Money Bill, that is, a law that deals with matters of finance and tax, as set out in the

 

The approach of the government is legally wrong. However, every wrong is not justiciable. If the set much store by the judgement of an occupant of high office, it was arguably intended that the occupant of that office must be trusted. If that trust is belied, it would only follow that we have a loophole in the that can only be corrected by a constitutional amendment.

 

It is equally true that courts have not always steered clear of every wrong that is not justiciable. Constitutional courts have happily legislated. Either entire legislation (for example, environmental charge for entry of vehicles into Delhi) including de facto contents of the (for example, the judges’ collegium for judicial appointments) have been created in the past by judge-made law. When facts are provocative enough, intervention may indeed follow.

 

In a challenge to the replacement of governors of states as political decisions, courts have ruled that no decision of the government, including a decision to replace a governor can be arbitrary, yet ruling that the decision cannot be interfered with. It is likely that the pending litigation over whether legislation that are nowhere near Money Bills can be passed by as if they were Money Bills, would meet the same fate.

This contrivance aimed at simply circumventing the has been resorted to in the past. The Foreign Exchange Management Act, 1999, had been passed by both Houses of as a non-criminal law to replace the dreaded criminal law contained in the Foreign Exchange Regulation Act, 1974. That was not a That had been a major milestone in India’s legislative and economic policy history. Two years ago, provisions criminalising exchange controls were brought into through a No consent of the was taken.

These infractions of law were not challenged since they were not politically correct for challenge. Now that a bigger gauntlet has been thrown, it is possible that some may challenge it.  The history of constitutional challenges to the creation of tribunals has itself had a chequered history at the hands of courts. The National Tax Tribunal could not be set up due to such a challenge.  The National Company Law Tribunal could indeed be set up although in its new form it is in conflict with earlier rulings of the Supreme Court rendered when dealing with earlier attempts to set up the Tribunal. There are as many views on interpreting the as there can be benches of the Supreme Court and of multiple high courts.

All of this is not to say that all the changes sought to be brought in are bad. There are some laudatory amendments — one is the retirement age of the presiding officer has been extended to 70 years. Some changes are horrible.  The tribunals listed in the Finance Act, 2017, are not the only ones whose has been disturbed. A provision entitling government to similarly merge other tribunals not named for now, by a simple executive fiat has also been passed as a part of the

 

The Finance Act, 2017, is a quiet power-grab in the conflict between arms of the state.  If the judiciary wrested control back by striking down the National Judicial Appointments Commission, the executive has sought to strike back by giving itself powers over vast areas of quasi-judicial territory.

This is the most vulnerable part of the Finance Act, 2017, since it could be struck down as being arbitrary as it is a matter of “excessive delegation” of powers by the legislature to the executive. A constitutional challenge to such delegation is not about whether it is a Even if it were to be regarded as a provision in a Money Bill, it would be liable to be attacked as an arbitrary delegation of power to the government.
A version of this post was published as my Without Contempt column in the Business Standard in its editions dated April 6, 2017

Somasekhar Sundaresan: Lofty ideals don’t justify faux measures

Regulators often overstate the seriousness of the work they do to defend every measure adopted in regulations, however flawed

There was one subject other than the corporate governance fracas at that grabbed the attention of social media in the last fortnight — the Securities and Exchange Board of India’s (Sebi) consultative paper seeking to restrict free speech in the Indian capital market.

 

Sebi’s consultative paper proposes that “no person shall be allowed to provide trading tips, stock specific recommendations to the general public through short message services (SMS), email, telephonic calls, etc. unless such persons obtain registration as an investment adviser or are specifically exempted from obtaining registration”. Further, “no person shall be allowed to provide trading tips, stock specific recommendations to the general public through any other social networking media such as WhatsApp, ChatOn, WeChat, Twitter, Facebook, etc. unless such persons obtain registration as an Investment Adviser or are specifically exempted from obtaining registration” Regulations are proposed to be amended to provide that such expression of would constitute securities fraud.

 

The consultative paper has been out for public comment for a while. However, it caught the attention of critics only recently, and the critique has gone viral. Indeed, they are also those who support any measure from folks in authority on the ground that anything from authority should be assumed to be backed by divine wisdom. They speak in favour of proposals since investor protection as an objective is a lofty ideal. Therefore, one must examine if Sebi’s proposals would pass muster under the Indian Constitution.

 

The guarantees freedom of speech and expression. Such freedom is subject to “reasonable restrictions”. For Sebi’s interventions to be constitutionally valid, the restrictions sought to be imposed on making public comments on securities must stand the test of being reasonable.

 

Assume a commentator makes remarks on television news channels that the shares of a company that has taken an inexplicable, unexplained business decision would fall. Or for that matter, assume someone who believes that a business decision is right merely because it a decision taken by men of stature will lead to the securities price going up. Under Sebi’s proposed law, tweeting such a view, posting it on Facebook, or broadcasting it on or would be illegitimate, unless the person doing so is registered with as an investment adviser.

 

Now, everyone with a view may not be in the business of providing investment advice. But the law would require registration as an investment adviser to be able to legitimately express a point of view.This would mean that the commentator would need to subject herself to a regulatory requirement and get licensed to carry out a business that she in fact does not carry on — that of providing investment advice for a living. Worse, if one were to express an opinion, one would be committing a securities fraud regardless of the veracity and accuracy of the opinion. The liability would be civil monetary penalty of to Rs 25 crore, a term in jail of to 10 years, a criminal fine of to Rs 25 crore, or remedial directions in the form of a direction to shut unless registered with to provide investment advice. In other words, the law would have a “chilling effect” on the freedom of speech and expression — hardly a measure that could be considered reasonable.

 

Almost everyone on an Indian street has a view on the outcome of every possible election — whether it is the elections in the or in UP. Now, picture a law that would criminalise expressing an on whether it would be Mayawati who would become the next chief minister, or if a certain faction of the Yadav clan in the would gain power, unless registered as a psephologist, or for that matter, unless registered as an official member of a political party.

 

Those who defend curtailment of free speech in the securities market would jump to say that financial markets are different from electoral markets. In the former, people lose real money when they get influenced by the expression of opinion. In the latter they may at worst get bad governments if influenced by prejudiced opinions. First, getting a bad government could be worse than losing some money that can be recouped later from the same markets. Second, what is a fair and what is a motivated fraudulent false statement is always a question of fact. Registration with an authority would not change that. In election petitions, courts consider if political candidates have adopted corrupt electoral practices. Likewise, (and therefore the courts) consider if a person who made a statement about securities did so fraudulently, knowing it to be false.

 

Regulators often overstate the seriousness of the work they do to defend every measure adopted in regulations, however flawed. The lofty heights assigned to investor protection can indeed be assigned to every area of regulation — be it food, electricity, competition, drugs and cosmetics, financial data aggregation, or even plying of taxis. The objective of regulation can be lofty but the measures to meet the lofty objectives still need to be reasonable in order to be constitutionally valid. Misplaced and overstated concerns can kill the “good” in the name of working towards the “best”. It is not wise to burn a house down to protect it from the rats that infest it. It is not wise to inflict forceful nasbandi to achieve population control.

 

It is wise of to have sought public comment on such a problematic proposal. One can only hope that the reactions received in the consultation process make one point clear to the regulator – there is no short cut to fighting real fraud in the market. That fight involves examining the statements and comments made, determination of whether it was motivated by fraud and scrutinising circumstances that would point to intent to cheat the market by making a false statement. Registration as an investment adviser can never reduce this burden.
This column was published Without Contempt in Business Standard on November 8, 2016 

Public consultation for law-making is no fetish

Consulting those governed by the law enables society to know the intent and purpose – it is only a consultation and not a vote

The need for before bringing in any new legal requirement keeps coming up every now and then. Most recently, it made it to the headlines yet again when the ruled that the manner in which the telecom regulator conducted public consultations and dealt with the inputs received was arbitrary and unconstitutional. The court had even remarked that India should have a law that makes it mandatory forto conduct public consultations in an objective manner when writing new law.

Interestingly, the had already directed in February 2014 that every government agency and department to follow a pre-consultative process when making law. The Union law secretary had communicated the Cabinet decision to all departments asking them to strictly abide by the requirement to conduct prior consultations with the public. The then United Progressive Alliance (UPA) government had burnt its fingers badly with civil society led by andover the draft law to create the not having been properly discussed with the public. It had yet gone on to make this a self-complying requirement without getting Parliament to make law. The new National Democratic Alliance (NDA) government has not reversed this decision in the two-year-plus tenure it has had so far.

However, this requirement is followed more in the breach by government agencies uniformly – both under the residual term of the UPA and the newly-elected NDA. Worse, many government agencies provide lip service to the process by getting public comments on draft policy and draft legislation on some proposed actions even while pushing through numerous decisions, both routine and serious, with no at all. For some reason, it appears that this self-imposed requirement had either not been highlighted to the by any of the parties, but many writ courts are now being called upon to determine the legitimate expectation of Indian society arising out of the requirement to be consulted.

What is the charm in a pre-consultation? Asking those who are to be governed by the law for their views on the proposed law enables a society to know the intent and purpose underlying the law. The consultation process helps clear out unintended consequences and unforeseen difficulties that could be posed by the proposed law. Having this dialogue could enable addressing loopholes that the proposed law would leave, and removing unnecessary and onerous requirements that do not meet the objectives – the subjects governed by the law are best placed to give this feedback. This includes the beneficiaries of rights under the proposed law (those the law seeks to protect) and those on whom obligations are imposed under the proposed law.

A pre-consultative process is only a consultation. It does not give a veto to the public. When members of a society express reservations about the efficacy of the measures in the new law, it gives the lawmaker a chance to address the concern – demonstrate that they are wrong, or acknowledge that they may be right but still have good reason to overrule their concerns. The sovereignty of the lawmaker – be it Parliament, or a regulator, or a department of the government – would be intact and majestic. After the law is brought in, the society would know what was really expected under the law. When anyone is in doubt about what course of conduct to adopt, such clarity would enable them to choose the conduct most responsive to the objective of the law. In the field of business and industry, this process would contribute immensely to the ease of doing business in India.

Yet, all these arguments are usually wished away as Utopian by the bureaucracy that proposes law and policy. Indeed, there can be abuse of the consultative process, but the abusive feedback has to be stated to be rejected. For example, regulators have found numerous similarly worded responses from different members of the public, making it evident that one vested interest supported one point of view, outnumbering the contrary view. But no one said pre-consultation was a public vote. The telecom regulator has indeed made the point well on theover net neutrality when social media companies abused the process.

Every law requiring a pre-consultative process would also naturally protect the lawmakers’ right to bring in requirements on an emergency basis. Such requirements would hold good for a reasonably long period during which the consultative process can run its course. After applying the process, the law could be reiterated, modified or removed. Indeed, the Union government’s requirement that every government department and agency should follow pre-consultative process does not cover presidential ordinances.

In the absence of a pre-consultative process being mandated under a binding law governing how law should be made, it is left to the whims and fancies of the bureaucrats writing the law to sidestep the governmental directive to have pre-consultation. Any government officer worth her salt would be able to write some reasons on why she cannot wait for the pre-consultation process and how it would hurt public interest to do so. In much the same way that she would be able to decry the debilitating impact of the law on the right to information. This is how regulators get away with giving society no clue of when they provide the avenue, how they deal with inputs and why they accept or reject any suggestion even while creating a mirage of on some matters of law-making. It is time to intervene with a formal substantive law – which too may entail public consultation.

This was published in the September 5, 2016 edition of the Business Standard column titled Without Contempt

DEATH DOES US APART

Thanks to the Law Commission’s public discussions and the coincidence of Yakub Memon’s impending execution, I dug into my old writings to see what I had written on capital punishment. Here are some writings that were published in the Ahmedabad, Bangalore, Mumbai and Pune editions of Mirror):

FUTILITY OF LIVING DEATH (September 5, 2014)

The death sentence no longer furthers either retribution or deterrence

The Supreme Court has ruled that it would start a new tradition of hearing in open court, petitions seeking review of judgements confirming the death penalty.  Otherwise, all review petitions are considered by the judges in chamber without another hearing.  This decision, yet again underlines the sensitivity in our highest judiciary to the infliction of death by man on man.

The futility of capital punishment has often found mention in this column.  More recently, rulings of the Supreme Court on the unacceptable length of time between the imposition of a death sentence and execution were lauded – the court has consistently ruled that even a convict sentenced to death enjoys the constitutional protection of the right to life until the last breath.  The Supreme Court has documented, with examples, how convicts on death row have gone insane or physically infirm, just waiting to know if they would be put to death or pardoned.  Of late, under-trials accused of gruesome crimes that are widely reported in the media have been found dead in prison under mysterious circumstances – typically explained away as suicide, they are recipients of lawless justice meted by the honour code among prison inmates.

Expectedly, hardliners rail against such considerations.  If a criminal can kill with impunity, they would argue, there should be no reason to spare her from any form of indignity.  They would accuse defense lawyers of frustrating execution.  A typical line one hears is that only in India one experiences delays in execution and that the system is broken.  The United States of America is often extolled for perceived speed in punishment and the allegedly consequential fear of law in American society.

Nothing could be farther from the truth as is underlined in a judgement handed down just six weeks ago by a Californian court.  Striking down a death sentence handed down in 1995 to a rape and murder convict, the court has held the death penalty system in California to be violative of the constitutional protection against imposition of cruel and arbitrary punishment.  The court found that since 1978 (when California introduced a new law on capital punishment), over 900 individuals were sentenced to death there.  Only 13 have been executed, 63 died of natural causes, 22 committed suicide, and the rest still languish in prison.  Indeed, some prison inmates have died of “drug overdose” or “violence in the exercise yard”.

The review and appeal of a death sentence takes more than 25 years in California.  The national average in the US, at over 15 years, is not spectacularly better. Only 17 out of the 748 Californian convicts with a death sentence have had their appellate and review processes run its full course.  Since 2006, no execution has taken place.  Over 20 per cent of the death row convicts have crossed the age of 60 in prison.  The random few who do get executed would have languished for so long that their execution would serve neither the purpose of retribution nor deterrence, the court has observed.

“Indeed, the law, and common sense itself, have long recognized, the judgement reasons, “that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition.”  These observations could well have been about India.  Despite the paraphernalia of safeguards, the administration of the death sentence is as damaged in the US as it is in India.

The blind faith Indian hardliners have in the US justice system is therefore neither backed by facts nor shared by her constitutional courts.  In fact, access to justice is so expensive in the US that even the innocent are incentivized to strike “plea bargains” rather than fight to clear their reputation, relieving prosecutors from having to stand the test of scrutiny.  The super-rich settle to save super-expensive litigation costs.  The impoverished end up in jail.  The quality of legal representation they then get is proportionate to their financial strength rather than strength of their merits.

Our Supreme Court’s latest decision on a public review of death sentences is therefore understandable – one has to be truly cautious about consigning any human into the living hell that the death sentence represents.

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LIFE AFTER DEATH (January 24, 2014)

The power to take away human life enjoins an obligation to do it with grace

It is a sudden blast of oxygen.  The Supreme Court has passed a well-articulated and cogent order to save fifteen pathetic lives from the hangman’s noose.  The methodically-documented record extracted in the judgement demonstrates the abject apathy of government towards convicts on death row.

Going by past experience, large sections of the media may air populist, shrill and typically-uninformed voices of critique.  Acts of mercy toward death convicts are always controversial.  When President Pratibha Patil granted pardon to some death row convicts, sections of the media derided her with headlines like “President Pratibha Patil, the Merciful”, “Who Has She Pardoned?”, “President Pratibha Patil goes on Mercy Overdrive”, and the like.  Therefore, the progressive ruling of the Supreme Court that gives India room to stake claims of being sensitive and humane deserves robust defence.

First, a line on the scope of the relevant law: Articles 72 and 161 of the Indian Constitution empower the President of India and the Governors of Indian States to pardon from punishment, or to suspend, remit or commute any death sentence.  Indeed, this power is an extraordinary executive power vested in the head of state.  However, successive governments in our young Republic have resisted introduction of transparent clarity on how such discretion is to be exercised.

Governments have historically convinced courts that no guidelines should be laid down, that no timeframe should be set for decisions on mercy petitions, and, that absolute arbitrary and whimsical exercise of such discretion is perfectly legitimate.  Disagreeing, the court has pointed out that the right question to ask is whether “supervening circumstances” have come into being.  These include delay in processing the mercy petition, violation of procedure for handling the petition, and insanity of the convict. The original conviction would remain unchanged but courts may reduce the penalty to a lower one based on merits of the supervening circumstances.

For sections of society opposed to compassion towards any convict on death row, no supervening circumstances can matter.  The easiest argument to adopt against any reduction in penalty is to recount the gravity of the crimes for which the death penalty was awarded. Nothing can be more fallacious.  By law, death can only be handed for grave crimes.  Therefore, necessarily, every petition for mercy from death would be one involving a grave crime.  The court has rightly observed that it is no argument to point to the gravity of the offence as a ground to reject a mercy petition.

In a nation with over-abundance of human lives, the value of human life is naturally low. The record of state apathy towards the lives saved by the court is heart-rending.  In violation of the law and past court rulings, many death-row convicts were segregated and held in solitary confinement without any human company despite appeals or mercy petitions being pending. The court has urged the jail system to read and honour the law.

The power to grant mercy under Articles 72 and 161 is to be exercised under the aid and advice of the government elected to office by the people – the President is only the designated head of state.  Most of the convicts covered by the order have been in custody for a decade or more. Their mercy petitions have moved back and forth between the Home Ministry and the Rashtrapati Bhavan.  Often, the files gave the President inadequate information.  In some cases, jailors sent repeated reminders without avail. In some files, the Home Ministry parroted a recommendation of rejection without supplying all the information the President sought.  In no case did the Home Ministry explain the inordinate delay.  Meanwhile some convicts were driven officially insane – rendering them legally unfit for death penalty and physically unfit for life.

Except for considering laws to enable convicts to contest elections, our politicians have had no interest in making other laws to govern humane treatment of convicts – death-row convicts are a meaningless component of the electorate.   The Supreme Court has reiterated that until the point at which the noose snaps life out of the convict, the right to life guaranteed under the Constitution would be validly available.  Since India is a signatory to international conventions that outlaw cruelty and degrading treatment of convicts, the courts would treat the conventions as if they were local law.

The court has also laid down guidelines on how to handle mercy petitions in future.  The right of human beings to legitimately take away another human’s life enjoins an obligation to do so gracefully.  The Supreme Court has done well to ring a reminder.

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NO MORAL HAZARD WITH PARDON (January 31, 2014)

Last week, this column lauded the Supreme Court’s decision to commute death sentences for fifteen convicts into life imprisonment.  One of the points made in it was that pointing to the gravity of the crimes involved is no argument since an award of the death penalty could only have been in the case of grave crimes. There is another dimension to the issue that bothers a lot of readers.

One question routinely asked is whether granting pardon from punishment to a convict erodes the sanctity of a punishment legally handed out by due process of law.  Another aspect is whether mercy petitions arbitrarily enable a review of the ultimate judicial decision objectively taken earlier on the merits of the crime.  Both these issues are important. They point to what economists would call a “moral hazard” – of whether it erodes the disincentive to commit crime by re-opening even a final sentence in a grave crime.  Each of these questions has comprehensive answers.

First, pardon is granted in extraordinary circumstances – it is an exception and not the rule.  The decision on whether to pardon, reduce or alter the sentence of punishment is taken on the basis of supervening circumstances.  The power to grant pardon is a discretionary one, exercised only by the President of India or the Governor of the states.  The provision is a power i.e. a right of the head of state to make an extraordinary intervention to grant pardon.  It is not an obligation that casts a duty on the head of state to grant pardon.

Constitutions of various nations bestow such a power because they are conscious that even the judicial system is ultimately manned by human beings who are amenable to making mistakes.  Moreover, a death sentence may been imposed despite noticing that the quality of the trial and the evidence was suspect – for example, the conviction and sentencing of Afzal Guru in the case of the attack on Parliament was driven by the fact that the attack was on a symbol of Indian democracy.  Somewhat like how the British sentenced Bhagat Singh to death in a murder case after he admittedly bombed the central legislative assembly.

In such circumstances, the Constitution permits discretion to the head of the state to consider whether an intervention would be necessary.  Such a power could be exercised due to extraordinary supervening circumstances (say, the convict having become insane) or even purely to achieve the objectives linked to matters of state.  For example, when Sarbjit Singh, an Indian convict was sought to be brought back from Pakistan, it was a provision enabling mercy petitions in Pakistan’s Constitution that would have been used.

In short, the very same constitutional system that legally metes out punishments also empowers heads of state with extraordinary powers to make extraordinary interventions if circumstances warrant.  Therefore, there is no erosion of legal sanctity at all – the legally-meted conviction remains intact.  A criminal is punished for who he is.  When supervening circumstances inflict an enormous change on him, the Constitution provides a forum to pardon him – there is no moral hazard.

Second, India’s Supreme Court has repeatedly held that a challenge to a grant or refusal of pardon cannot be arbitrary.  The check and balance of judicial review against arbitrariness would apply to such cases too, and writ petitions may be entertained.  Therefore, it is necessary for the head of state to be cogent, reasoned and obedient to the guarantee of non-arbitrary conduct when the head of state deals with such petitions.

The court would not at all be sitting in another appeal over whether the conviction was meritorious.  The court would solely be reviewing whether any relevant factor was ignored (example: the convict having become insane), or whether irrelevant factors were considered (example: the convict was pious).  Therefore, merely because the power to grant or refuse pardon is discretionary, it does not follow that the discretion is absolute.  The state cannot grant or refuse pardon whenever and however it chooses without having to explain itself to the court carrying out the review.  A decision refusing pardon should meet with as much reason and application of mind as one granting pardon.

It is the abject disregard of relevant factors such as insanity in some cases, and the absolute arbitrariness and apathy in handling of the petitions that led to the Supreme Court’s intervention last week.  If the state had reasonably rejected all those petitions within reasonable time, our society and the convicts would have achieved timely mutual closure.  No supervening circumstance would have emerged. There would have been no case for judicial intervention.

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DEAD MAN TALKING (March 13, 2015)

 India’s Daughter has caused turmoil. Any film in the “lest-we-forget” genre should spark unease to make society face up to unpleasant realities.  However, that would not mean that other conflicting realities do not exist.  For India, the perception that it is not a safe place for women is an unpleasant reality.  Yet, the perception that India is indeed as safe or as risky a place as any other part of the world too is a reality.

Acknowledging one reality does not negate the existence of other conflicting realities.  The refusal to accept a disturbing reality makes a society appear like one that lacks strength of belief in conflicting realities.  Just last week, a friend from abroad toured India for the first time, covering Delhi, Agra and Rajasthan even the world’s attention was riveted on women’s safety in India thanks to the ban on India’s Daughter.  She enjoyed a completely uneventful and safe trip through the heartland of what is considered by many non-travelling Indians to be the lawless zone.

In reply to a Facebook post expressing happiness at this tour, some felt that I should thank my stars that she escaped unhurt. Another non-Indian lady who too had undertaken an enjoyable uneventful solo tour here a few years ago said she was not surprised at all.  Meanwhile, a professor in a German University denied internship to a male Indian student since India’s sons have not been able to resist raping her daughters for just too long. After the German Ambassador to India intervened, a formal apology followed.

Most human minds are capable of only seeing one appealing reality to any story.  At best, the mind may grudgingly accept another reality, but would emphasize that the other reality is a marginal exception to the rule.  One such unpopular reality is that India’s Daughter threw a convict on death row to the wolves.  Mukesh Singh, the illiterate driver of the bus in which the Nirbhaya sexual assault was committed agreed (presumably, he was not tricked into it) to be interviewed for the film and face up to his realities.  Evidently, the other convicts (housed in the same jail and whose faces were featured in the film) did not participate in interviews.

Singh aired his views on what could take a victim’s life – one, her resistance (lesser in degree to former CBI Director Ranjit Sinha’s infamous “when the rape is inevitable” remark) and two, the dangerous fallout of death penalty (similar to views of credible women’s rights activists).  If the daylight slaughter of a rape-accused in Nagaland is any barometer, Singh’s life is in grave danger inside jail – after all, his brother was mysteriously found dead within days of arrest.

For every Shukla, Mishra and Tiwari, the film’s footage of Singh’s interview is adequate to demonstrate his lack of remorse.  No one believes that one needs to be a psychologist or face-reader to make this conclusion. Some even say his words did not contain remorse because he was defending himself.  Singh stands demonized in the Indian eye.

One neither has unedited footage of all that was filmed nor aware what questions were put to him to beget these answers. The government has now called for unedited footage.  A psychiatrist friend says, for most people, spoken words alone matter.  Why else, she asks, do people get happy just hearing the word “sorry” regardless of whether it is meant.  An apology under duress from the Indian-hating German professor gives them closure.  But the participation in the film by Singh (potentially, remorse-driven) does not aid closure.

Late Vinod Mehta recounts an anecdote in Lucknow Boy: Journalist Alistair Cooke says to Jawarharlal Nehru: “I was taught there were two sides to every story. But I find frequently there are four or five sides to a story.” Nehru’s reply: “Welcome to the Hindu view of truth.”

To address social problems, it is important to make films to understand the convict’s mind.  It is as important to protect the rights of convicts, particularly those on death row who agree to help society study their minds.   If society believes that such convicts have no rights at all, no assault, including sexual, on them, would shock such a dead society.  Since India cannot officially view India’s Daughter, she should view Susan Sarandon’s Dead Man Walking.

Twitter: @SomasekharS

DEFAMATION IS NOT CRIME

Self-litigating-non-lawyer-now-with-BJP politician Subramanian Swamy is on course to creating legal history again (after his litigation relating to 2G spectrum).

The Supreme Court is hearing his writ petition challenging the legality of defamation being considered a crime. A bunch of 18 other writ petitions filed this year by petitioners ranging from Rahul Gandhi to Arvind Kejriwal have been tagged with Swamy’s petition of last year.

Under Section 499 of the Indian Penal Code any “imputation” by words or signs that can harm the reputation of another person commits the crime of defamation. A nod or a wink in a manner that harms someone’s reputation is a crime. The punishment, apart from fine, can extend to two years in jail. In current-day Indian society, where everyone is quick to assume that everyone else is corrupt, this would mean that the “crime” is rampant in society. Equally, it would mean that a law that renders almost every human being’s conduct to be a crime is draconian and unconstitutional.

The Indian Constitution guarantees freedom of speech and expression as a fundamental right. It permits fetters only if they are “reasonable restrictions”. Defamation is explicitly mentioned as one of the grounds on which fundamental rights can be “reasonably restricted”. The key question, therefore, is whether sending someone to jail for expressing a view can be considered reasonable. Every crime is wrong but every wrong cannot be crime.

Remember Sharad Pawar’s famous suit in the 1990s for damages of Rs 100 crores against The Outlook for suggesting that the NN Vohra Committee appointed by the Home Ministry had suggested a nexus with hawala operators of Dawood Ibrahim. The dispute was settled out of court for an unconfirmed sum, estimated at Rs 5 crores. Likewise the only retribution so far against TV anchor Arnab Goswami has been the prohibitively expensive and chilling deposit of Rs 100 crores that has had to be paid in a defamation suit filed by a retired judge after he aired the photo of the retired judge as the photo of someone else who was that night’s subject of humiliation. While civil proceedings are an effective disincentive to defamation, criminalising defamation presents a bad economic policy incentive.

Civil proceedings involve paying fees for justice delivery linked to the amount claimed. Criminal proceedings involve setting up the might of the state at the expense of taxpayers to settle private battles. If one politician bad-mouths another, it is hardly a reason for the common man’s taxes to be used in resolving their battle. Although our politicians are far more thick-skinned than our businessmen, they routinely initiate criminal action for alleged defamation. Recently, the highly-reputed Maharashtra Chief Minister is reported to have threatened criminal defamation against anyone suggesting that he had some responsibility for delaying the take-off of his Air India flight.

The perverse incentive in use of criminal prosecution is pervasive. The rule of law in civil courts is sidestepped by the coercive exploitation of the human fear of losing personal liberty in jail. Private business defaults could routinely be termed as cheating or criminal breach of trust. The very prospect of criminal proceedings could coerce a settlement of disputes. Retired police officers with access to local policemen are reported to have set up business models founded on this fear.

The Union Home Ministry has opposed the petitions on the ground that civil suits take too long to be effective. This statement underlines a governmental endorsement of the fear of the police to curb free speech. The criminal justice system is as broken if not more broken than the civil justice system. Therefore, it is the sheer fear of having to answer summons in distant locations that the ministry seeks to endorse. Such an approach is an endorsement that a chilling effect on free speech is seen as being desirable by the government. It is the government’s job to clean up delays in justice delivery. Endorsing a perversity to deal with another perversity is bad governance. Whichever way the Supreme Court decides, this case will be an important event in India’s legal history of freedom of speech.

(This piece was published in the July 17, 2015 edition of the Ahmedabad Mirror, Bangalore Mirror, Mumbai Mirror and Pune Mirror)

HOW CONSTITUTIONAL ARE SEBI’S DIRECTIONS?

SC’s rationale on validity of IT Act holds immense significance for the financial sector

The Supreme Court’s decision on a challenge to the has made news for the section it outlawed — Section 66-A of that law. However, the court’s decision refusing to outlaw another provision of the law, and the rationale for that decision, carries immense significance and conveys serious lessons for the financial sector.

In the constitutional challenge to the law, Section 66-A was outlawed for being vague, over-reaching and arbitrary.  However, Section 69-A (which empowers the central government  to issue directions to block public access to electronic content) was saved as being constitutionally valid, on the ground that there were effective procedures and safeguards that could protect against abuse. Directions to block public access to electronic content under Section 69-A can be issued only on specific grounds, and Parliament also required the government to make rules to govern the procedures and safeguards for use of such power.

This is the section under which your access to viewing a documentary such as India’s Daughter can be blocked. Now before you jump to the conclusion that the decision to block that film has been upheld, remember that the court has only ruled that the power to block public access does not by itself violate the Indian Constitution. It does not mean that any and every use of that power is constitutionally valid.  In fact, the court found that the safeguards and procedures enable a mechanism to avoid arbitrariness, and even after those are followed, a challenge under a writ petition can be made. Section 69-A explicitly reproduces the very eight grounds on which reasonable restrictions may be imposed on the fundamental rights to various liberties enshrined in Article 19 of the Indian Constitution. Written rules notified by the government specify that a request for blocking any electronic content has to be made to a “nodal officer” who shall apply his mind to whether or not any of the eight grounds are available in the facts of the case. She then puts up the complaint to a “designated officer” who is authorised to issue such an order.  Meanwhile, a committee of government officers is required to examine the complaint, arrive at a view on whether the blocking of access may be considered to be reasonable (i.e. whether any of the eight grounds are available).

The committee is also required to give a hearing to any person who has generated or stored the electronic content sought to be blocked so that the arguments against a potential decision to block access can be heard. The case is then placed before the secretary, Ministry of Information and Broadcasting, who could then take a view, after which the designated officer may block access to the content complained of. Over and above this framework, a “Review Committee” is required to meet every two months and examine whether such decisions to block access to electronic content should be continued or not.

The took note of the elaborate framework of procedures and safeguards prescribed in law to protect against arbitrary usage of the power to issue directions, and therefore held 69-A to be constitutionally sound.  Now, juxtapose this with a similar “power to issue directions” granted to the Securities and Exchange Board of India under sections 11(4) and 11B of the Securities and Exchange Board of India, 1992.

First, the sections themselves (unlike 69-A) make no reference to the safeguards set out in the Indian Constitution.  They empower the regulator to issue directions “in the interests of” investors in the securities market – a term that can be understood in as wide a range as a painting of Mother India by M F Husain.

Using this power, any person associated with the securities market can be put out of the securities market until further notice without even a hearing. This measure can simply mean, in practical terms, that one cannot access one’s own savings invested in financial assets so long as such assets are “securities” — practically, almost everything other than what is in one’s bank account.

Second, unlike 69-A, there is no prescribed procedure at all for how the regulator should consider or  reconsider whether directions under Sections 11 and 11B are warranted or justifiable. The need for a post-decisional hearing is often presented as a safeguard. In reality, in the absence of any prescribed procedure or timelines, there can be absolutely no expectation of when such a post-decisional hearing would be afforded.

It can range from a few weeks to several months.  Instances of people being put out of the market on suspicion first, with investigations following later and dragging on for years, are par for the course.

In the 20-year history of this power, neither has a single rule been made by government nor has any regulation been made by on its own, to govern the usage of this all-important power similar to those in anti-terrorism laws.

Third, there is no review at all of whether a direction issued is required to be continued even when months and years go by. There is no review committee, no independent mind, or any other such safeguard to review whether or not a direction issued should be continued.  Over the years, the norm  has degenerated to the regulator almost never lifting a direction once issued.

Worse, the evidence shows that more and more strident tones are adopted regardless of content, in the delivery of the message continuing the directions.  These tones prejudice “collective conscience”, which in turn, influences judges.  So much so, that when directions are lifted by Sebi of its own accord, corruption is assumed. Provisions similar to sections 11(4) and 11B are contained in every legislation governing the financial sector — first found in the Banking Regulation Act and replicated in every legislation including recent ones such as those governing the insurance and pension regulators.

The Sebi is the regulator that has used it the most. None of these legislation has safeguards akin to those in 69-A. In the collective conscience of our society, the constitutional rights of those in business, have always been perceived as less worthy, perhaps due to the sub-conscious belief that these are the folks who otherwise subvert the law.

The European Court of Human Rights has recently seriously interdicted such powers of the Italian securities regulator. Until India brings order in this space, doing business in India will remain very difficult.


(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.)  

(This piece was published in the March 30, 2015 edition of Business Standard)

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