The system of fixing fees based on the ‘star value’ of the lawyer is a dangerous trend for the judiciary as well as for our democracy
Access to justice essentially means access to a lawyer. The legal profession has a public character. A lawyer is placed between the state and the citizen; therefore, he performs a democratic, libertarian and emancipatory function. The bar is not a private guild. In a celebrated decision in the United States, Justice Nelson rightly said that there is no other relation of life involving higher trust and confidence than that of an attorney and his client (Stockton v. Ford, 1850).
Canon No.12 of the American Bar Association Canon of Professional Ethics warns that “In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.” Wesley Romine reminds us that “if the legal profession is to honor its responsibilities to public service, it is essential that the society which it serves should not view the professional abilities of lawyers as representing avaricious and purely personal efforts to obtain wealth.” In Bushman v. State Bar of California (1974), the demand for excess fees coupled with misrepresentation and an attempt to solicit work was the matter in issue. In that case, following the ratio in re Goldstone (1931), a California Court declared the principle of law: “It is settled that a gross overcharge of a fee by an attorney may warrant discipline. The test is whether the fee is ‘so exorbitant and wholly disproportionate to the services performed as to shock the conscience’.”
Cost of litigation
But rhetoric is not reality. Though there is a lawyer between the state and the citizen, between the lawyer and the citizen, there is often the real obstacle of exorbitant professional fees which in itself forms the major chunk of the cost of litigation. Litigation in the Supreme Court is often a multi-crore affair. It is so in many of the High Courts as well. This is the irony prevalent in the constitutional courts, irrespective of the country’s socialist preamble to the Constitution. Legal aid for the poor does not enable the poor to choose the lawyer, nor the lawyer to choose the poor. Quality advocacy is an expensive commodity in the legal market. In V.C. Rangadurai (1978), Justice Krishna Iyer bothered about the “elitist” character of the profession and said that “its ethics, in practice, leave much to be desired.” Today, the profession has assumed a corporate character. A recent study demonstrates that the Supreme Court is a court too far away from the common man (Frontline, April 20-May 3, 2013). The alienation is not due to geographical or institutional reasons alone. Lawyering, by and large, has become a big industry. The distinction between the profession and the trade is blurred. The pity, however, is that often it lacks even the fairness of trade.
Ms. Esha Saha, Associate Editor at Live Law exposes the practice of senior lawyers charging unbelievably excess fees under various heads like retainer fee, settlement of brief charges, conference charges, appearance charges, reading fees, opinion/consultation fees etc. After indicating the alarming figures of the fees charged, she says, “Law is the most sought after and money spinning career in [the] U.S., but even the lawyers from [the] U.S. are astonished to hear about the fees charged by some of the star lawyers in our country. Indian senior lawyers have come a long way since the days of legal luminary M.C. Setalvad who had fixed a standard rate of Rs.1,040 for special leave petitions (SLPs) and Rs.1,680 for final hearings.”
The tragedy is that what the western democracies start to take as misconduct, is (mis)taken for eminence in a country that discovered and aspired for Gandhian jurisprudence. The cost of good lawyering is too serious a matter to be left to lawyers alone.
Need for standardisation
The difficulty experienced in an assessment of fees and the fallibility of another’s judgment regarding an advocate’s fees does not justify the robbery by the robbed brethren. The proportion between labour and cost is not wholly irrelevant. Corporatism should not annihilate conventional values. Experience, specialisation, value of time and intensity of efforts may be crucial in determining fees. Also, there are general economic criteria like demand and availability, material cost, abandonment of other work, etc. The system of fixing fees based on the “star value” of the lawyer is, however, a dangerous trend for the judiciary as well as for our democracy.
Though there is a lack of standardisation and certainty in many areas of legal remuneration, the levy of “shockingly exorbitant fees” should lead to disciplinary action. It needs to be taken as an action of misconduct that “tends to bring reproach to the profession” amounting to professional misconduct as defined under the Bar Council Rules.
There are state legislations regulating the lawyer’s fees in the subordinate courts and even in the High Court in civil and criminal matters. Often, those are framed by the High Court by invoking power under Articles 225 and 227 of the Constitution. The rules regarding fees payable to advocates in Kerala designed by the Kerala High Court after approval by the Governor is a fine example (Kerala Gazette dated 22.7.1969). It is a tragedy that the practice of law in the constitutional courts is not controlled by any law whatsoever. There is a real need to evolve an Aam Aadmi movement in Indian constitutional courts, where people should be able to ask for fair advocacy as a right.
Classification of lawyers
Senior lawyers are designated by the court. The seniorship is either conferred or granted on application. Section 16(2) of the Advocates Act states that an advocate can be designated as senior if “the Supreme Court or the High Court is of the opinion that by virtue of his ability, [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.” Note that the statute does not insist on any ethical parameter in deciding the question of designation. The prescribed application in some States inter alia asks for income tax details. Behind it, there is an incorrect and unacceptable postulate that the more the income, the more eminent the lawyer.
Generally speaking, the judiciary in the country also would find it difficult to indicate instances of moral and democratic considerations in choosing the leaders of the bar. It is time the statutory concept of eminence is radically altered by way of appropriate amendment. According to Section 16(3) of the Advocates Act, the Bar Council of India can restrict senior lawyers in the matter of their practice. In view of this statutory obligation cast on the Bar Council, the levy of excess fees also should be regulated by the Council. I support the suggestion by Nick Robinson that independent boards should oversee the profession in the best interest of the litigants (“Failed by the lawyer,” The Hindu, July 6, 2013). Chapter II under Part VI of the Bar Council of India Rules deals with “Standards of Professional Conduct and Etiquette.” The rules also need appropriate amendment encompassing excessive bills.
Negation of equality
On account of the indiscriminate conferment of seniorship, there is a clear negation of the perceived equity and equality among the bar members. By treating the bench and the bar on a par with each other, a higher level of internal democracy was conventionally ensured in the judiciary. A similar equality among the members of the profession also is an Anglo-Saxon legacy. The classification of lawyers envisaged by the Advocates Act has had the effect of sabotaging the fundamental uniformity in the bar. In a Maharashtra case, M.P. Vashi v. Union of India (W.P.(C) No.632 of 2011), the levy of exorbitant fees by senior lawyers was the matter in issue. Vashi argued that most of the designated lawyers, by making use of their star value and face value, charge unfair fees. He submitted that a kind of monopoly is being created in the business, detrimental to the interest of the common man at “the other side” who is unable to afford such highly priced lawyers. Unfortunately, the Bombay High Court was not inclined to accept the contention and a historical opportunity for institutional introspection was lost.
Even in decisions dealing with the professional conduct of lawyers, the Supreme Court has not focussed on the question of lawyers’ fees (O.P Sharma v. High Court of Punjab and Haryana (2011) and Supreme Court Bar Association v. Union of India (1998). However, in an earlier judgment in Bar Council of Maharashtra v. M.V. Dabholkar (1975), the court indicated that misconduct is “not restricted to technical interpretations of Rules of conduct.” The Supreme Court added, “Professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the books but in new canons of conscience which will command the members of the calling of justice to obey rules or morality and utility.” This principle should apply to the instances of excess charges by lawyers, whether they are seniors or juniors. Since there is a clear deficit in the legislations, which has the effect of infringing on the common man’s right, the Supreme Court needs to lay down the law even by way of judicial legislation as done in Vishaka (1997) and Vineet Narain (1998).
It is fallacious to think about popularising the judicial institutions or legal profession for that matter. The point is about democratising them. The right to choose among the capable is the touchstone of democracy. Like in any other occupation, a lawyer’s job too is quite ordinary and terrestrial. It is high time that the aura surrounding it is removed and the profession demystified. Litigants, like patients, make for an unorganised lot. Reformation in the legal profession is a condition precedent for judicial reforms which again is indispensable for democratic reforms. The idolatry within the bar is detrimental to the majority of the members of the profession, who do not have any role in the mischief. It also negates public good. The state should, therefore, interfere with the “legal market” in the country.
(Kaleeswaram Raj is a lawyer practising in the Supreme Court of India and the High Court of Kerala. E-mail: email@example.com)
The Supreme Court has taken the position that it cannot be expected to abandon its role of being the guardian of the fundamental rights of all persons within the territory of India
In a span of about 45 days, the Supreme Court of India has delivered two judgments that have received diametrically opposite reactions — one will count among the Court’s most poorly reasoned judgments while the other is likely to be heralded as one of its finest for its clarity and fidelity to earlier decisions. The contrast between Justice Singhvi’s judgment upholding the criminalisation of homosexuality and that of Chief Justice Sathasivam affirming the rights of mercy-rejected death row prisoners could not be starker. After Justices Singhvi and Mukhopadhaya upheld the constitutionality of Section 377 of the IPC in Suresh Kumar Koushal, the credibility of the Court as a counter-majoritarian institution had suffered a serious setback. However, the Chief Justice, along with Justices Ranjan Gogoi and Shiva Kirti Singh, has done a remarkable job in partly restoring the credibility of the Court through a thoroughly reasoned judgment in Shatrughan Chauhan v Union of India. In Chauhan, the Court has concluded that inordinate delay in the rejection of mercy petitions of death row convicts amounted to torture and that it is a sufficient basis, in and of itself, to commute a sentence of death to life imprisonment. It is not just about the contrast in outcomes in these two cases but the processes adopted by these two judgments will go a long way in determining the position they will occupy in the judicial history of this country.
Any comparison between the two judgments must begin by acknowledging complexities involved in both cases. The legal response to homosexuality in India through Section 377 has been on the statute books for over 150 years. Though attitudes towards homosexuality have undergone significant changes, it would only be fair to acknowledge that it is nonetheless a deeply divisive issue in India. It would also be a fair assessment that the death penalty and treatment that must be accorded to those sentenced to death are extremely polarising issues. The case before the Supreme Court in Chauhan was particularly delicate because the President had rejected mercy to all 15 prisoners before the Court. However, all 15 prisoners had returned to the Supreme Court seeking enforcement of their right to life on the ground that their suffering on death row due to the inordinate delay by the executive (ranging between 11 to 1.5 years) entitled them to commutation of their death sentence. It must also be noted that the Supreme Court in both cases was being asked to intervene in situations where other organs of the state had already made certain determinations. In Koushal, the legislature had made the political determination that homosexuality would be criminalised by not repealing Section 377. Similarly, in Chauhan, the executive, through the President of India, had rejected all the mercy petitions.
Though the challenges were similar in many ways, there is an unbelievable contrast in the manner in which the Supreme Court responded. In Koushal, the judgment authored by Justice Singhvi does not address the legal issues that were at the heart of the constitutional challenges to Section 377. There are the poorly argued sections on equality under Article 14 and the right to life under Article 21 while completely ignoring the arguments on the protection against discrimination under Article 15. The shortcomings of Koushal are evident when it is compared to the judgment of the Delhi High Court on Section 377 in Naz Foundation. There are established constitutional doctrines to test whether a provision of law is discriminatory and violates the right to equality under Articles 14 and 15 of the Constitution, none of which finds any serious engagement in Koushal. None of this is about whether one supports Section 377 or not. It is about adopting a sound judicial technique — it is about identifying precise and relevant questions; it is about applying constitutional doctrines to those questions in a rigorous manner; it is about reasoned conclusions. Rights adjudication is not about judges merely taking a decision and that is what distinguishes them from politicians. Unfortunately, the judgment in Koushal fails on all these grounds. More than the unacceptable outcome, what must worry us more is that the judgment in Koushal reads like a thinly veiled political decision.
However, the judgment in Chauhan articulates a very difficult legal issue precisely and clarifies the decision of a five-judge bench in Triveniben (1989) on it. While clarifying and relying on Triveniben, there is thorough constitutional reasoning in Chauhan that led the Court to come to the conclusion that inordinate delay in disposing of mercy petitions amounts to torture and that the nature of the crime must have no relevance in that determination. The issue about the nature of the crime was particularly important in the context of the Supreme Court’s decision in Bhullar. In Bhullar, the Supreme Court had concluded that those sentenced to death for terrorist offences could not invoke the argument about inordinate delay in disposing of mercy petitions due to the nature of crimes. While relying on Triveniben to come to the conclusion that the classification of terrorist and non-terrorist offences in the context of inordinate delay in disposing of mercy petitions is constitutionally invalid, the judges, in Chauhan,have not created new jurisprudence and have only clarified the content and application of earlier judgments. There is tremendous judicial skill in the manner in which they have analysed earlier judgments and applied constitutional doctrines.
Challenges and responses
The most obvious difference in the two judgments is the approach to the target groups concerned. In Koushal, the perception that only very few homosexuals have been prosecuted under Section 377 was of tremendous significance to the judges. A numerical approach to rights enforcement is rather baffling and quite alien to the jurisprudence developed by the Indian Supreme Court. In Chauhan, despite dealing with a very small group of individuals (those death row prisoners whose mercy petitions have been rejected) and in particular a group which is often hated and reviled, the judges emphatically held that the protections in the Constitution are available to every individual, without exception. Perhaps the greatest merit of the decision in Chauhan is the rejection of the argument that retribution or strong moral disapproval of actions by death row prisoners can be used to deny them constitutionally protected rights.
As far as institutional relations between different organs of the State are concerned, the Supreme Court, in Koushal, ruled that Parliament was free to amend Section 377 and decriminalise homosexuality. However, if the law were to stand, the judges felt there was no constitutional infirmity. There is a palpable reluctance to meaningfully scrutinise a law on a divisive issue where the political class has made a choice. However, in Chauhan, the Supreme Court squarely addresses the warning that the Court might be overstepping its jurisdiction because the President had already rejected the mercy petitions of all 15 prisoners. The Court is clear that it is not questioning the power of the President to reject mercy petitions but is rather interested and competent to go into the issue of whether the executive violated the rights of the death row convicts due to the inordinate delay. The Supreme Court has taken the position that it cannot be expected to abandon its role of being the guardian of the fundamental rights of all persons within the territory of India, whoever they might be.
The Supreme Court, in Chauhan, had the courage to undertake significant course correction by clarifying the ruling in Triveniben. As efforts to decriminalise homosexuality gather pace again with the scheduled review of Koushal this week, the Supreme Court must see the fact that critical questions about the constitutionality of Section 377 have not been addressed in Koushal. If the review petition does not result in correction of the errors in Koushal, the Chief Justice of India (due to retire in April 2014) will find himself in an interesting position. After having delivered a judgment that has gone a long way to restore the credibility of the Court after Koushal, the Chief Justice will have to decide if he wants to refer the constitutionality of Section 377 to a larger bench. Given the intensity of his commitment to the rule of law as displayed in Chauhan, it would be surprising if Chief Justice Sathasivam lets the poorly reasoned judgment in Koushal be a blot on his tenure as Chief Justice of India. He only needs to look as far as the Delhi High Court’s judgment on Section 377 in Naz Foundation to realise what an alternative legacy could look like.
(Anup Surendranath is an assistant professor of law and director of the Death Penalty Research Project at the National Law University, Delhi.)
To be able to deliver appropriate legal services to the rural and tribal communities, we need an alternative delivery system with a different model of legal service providers
Delivery of legal services to the rich and the corporate class is organised not through individual lawyers but through a series of networked law firms. These firms employ hundreds of lawyers and domain experts all over the country to provide highly specialised single-window services to their clients, of course at prices determined by the market. The middle class, which cannot afford their services, go to individual lawyers or publicly-funded legal aid services organised under the Legal Services Authorities Act. In this scheme of things, it is the poor and marginalised rural and tribal communities who are left out. They suffer injustice or seek justice through informal systems, including the so-called “khap panchayats.” It is this sort of situation prevailing in the countryside that provides a fertile ground for the exploitation of the poor and for the growth of extremist forces, undermining the rule of law and constitutional governance.
Myth of legal aid
The 1973 Expert Committee on Legal Aid, titled “Processual Justice to the People,” which eventually led to the enactment of the Legal Services Authorities Act, discussed the futility of the court-centric litigative aid to the poor and marginalised sections, and recommended a series of alternative strategies. Obviously, the emphasis was on legal empowerment and mobilisation, preventive and strategic legal services intended to avoid victimisation, and the development of a public sector in the legal profession capable of responding to the problems of the rural and tribal communities. Unfortunately, when the legal aid law was enacted, the focus again was on assigning a lawyer to the needy client who took the task in a traditional style of protracted litigation with its attendant costs, uncertainty and delay — much to the dismay of the poor. Moreover, the system was premised on three assumptions which were contrary to ground realities — that the victim was aware of her rights and knew how to approach courts; that legal aid offices were available in far-flung villages and tribal settlements; and that the lawyer assigned had the right values, attitudes and competence to do a professional job appropriate to the justice needs of the rural/tribal population. These assumptions did not hold good in a majority of villages and, as such, conventional legal aid became irrelevant to the rural population. Language and communication compounded the situation, alienating the marginalised from a court-centric justice system. One alternative the Legal Services Authorities Act provided was the “Lok Adalat”, which lawyers disliked. The judges, honourable exceptions apart, turned it into an exercise to reduce arrears in courts through what some people call “forced settlements or hurried justice.”
Nonetheless, the Lok Adalat did serve the cause of justice for those who could reach the court despite all the odds. For others, legal aid had very little to offer. The Supreme Court did help them in a big way in the 1980s and the 1990s through the instrument of public interest litigation (PIL), which later lost its importance because of wide abuse by the urban elite and vested interests. Although it is difficult to generalise the legal needs of the rural poor because of the diversity of population, the need for food, shelter, education, health and work are admittedly the priority. The Constitution has left it to the legislature and the executive to progressively realise these needs through laws, schemes and special measures.
At the same time, the Constitution promises to all its citizens equality of status and opportunity, as well as equal protection of the law. Finding that large sections of the poor are unable to fulfil their basic needs even after decades of democratic governance, the Supreme Court sought to interpret socio-economic rights (Directive Principles) as civil and political rights (Fundamental Rights), compelling the state to come forward with laws empowering the poor with rights enforceable under the law. The Right to Education Act, the Food Security Act, and the Employment Guarantee Act were promising initiatives in this direction. However, the poor continue to be at the receiving end of an indifferent administration because of the difficulties in accessing justice through conventional legal aid.
We, therefore, need an alternative delivery system with a different model of legal service providers in rural and tribal areas. How can one fix the land rights of the poor when they have neither ‘pattas’ nor other valid documents? How do water rights and forest rights get protected from exploitation? What happens to government-sponsored schemes for food, sanitation, health and employment, aimed at alleviating the misery of the poorest of the poor? How to ensure that children are in school and are not abused and exploited? What can be done to prevent atrocities against the Scheduled Castes and the Scheduled Tribes in villages, and their forcible displacement? Where do they get credit for their livelihood activities and how are we to prevent victimisation in the process? Do they have fair market access for their produce? What happens to the bio-diversity of rural and tribal areas? How best to preserve and protect traditional knowledge and other intellectual property rights of the rural poor?
What about the labour rights of the unorganised rural poor? How are the rights of farmers to be protected against profit-hungry multinationals’ monopoly on seed, fertilizer and pesticide business? Are the villagers being exploited by state agencies like police, forest officials, banks, revenue officials and mining lobbies with impunity because of the inaccessibility of the justice system? Why is it that the Gram Nyayalaya Act, supposed to extend quick and cheap justice to the rural poor, is neglected by lawyers and judges?
Need for an alternative
When these questions were raised in a professional development workshop recently at Bilaspur in Chhattisgarh, the consensus was that we need an alternative model of legal service delivery to rural and tribal communities, for which a new pattern of legal education needs to be developed. The mainstream law schools are not clear in their mission. Legal educators blindly follow the Bar Council-prescribed court-centric curriculum, producing law graduates unfit to serve the justice needs of the tribal and rural communities. With such advocates, even a well-intentioned legal aid scheme cannot deliver justice to the marginalised sections.
The Bilaspur Workshop evolved a framework of an alternative LLB curriculum for the education and training of legal service providers, appropriate to rural and tribal needs. While the mandatory part of the BCI curriculum is accommodated, the alternative model identified over 40 subjects relevant to rural needs to be included in the optional component of the curriculum. However, the workshop felt that the new type of legal service providers proposed under the alternative model is not distinguished on the basis of knowledge of law only, but in terms of a different set of skills, attitudes and values relevant to the rural/tribal communities. It was proposed that the final year of the five-year LLB programme be devoted to experiential learning through social justice and legal aid activities in rural areas under the supervision of NGOs, self-government authorities, collectorates, and legal aid committees besides law school professors. The experiential learning is through clinical courses developed by law schools for appropriate credits.
Students seeking to set up practice in rural areas will form themselves into what may be called lawyers’ cooperatives or rural law firms, and train in advocacy before public bodies, administrative authorities, Gram Nyayalayas and regulatory agencies, besides courts and tribunals. They will be assisted by trained para-legals from among school dropouts and social activists of the area. The fee for each legal service will be fixed and notified by firms and they will be affordable. These rural law firms will be organised professionally on the lines of urban law firms in terms of technology and quality of services. Cheap, prompt and reliable services will be the hallmark of rural law firms. The law school will give the successful candidates not only an LLB degree but also a diploma in rural legal practice, which will distinguish them from the rest.
It will be the endeavour of law schools adopting this curriculum to assist the graduates to set up their practice in rural and tribal areas, organisationally and financially. Towards this end, the law school will approach the large urban law firms to extend their help as part of their corporate social responsibility. Besides, State governments and the National Legal Services Authority will be asked to give them subsidy in locating their offices in villages and recognising them as public defenders for identified services. Some law schools in Chhattisgarh, Jharkhand, Orissa, Madhya Pradesh and northeastern India have shown interest in adopting this model of legal education. The immediate problem, of course, is to find the right kind of teachers who can deliver under this alternative curriculum. To meet this challenge, there is a proposal to offer a one-year diploma in Law Teaching and Research to teachers of law schools in these States, with a view to augmenting the available resources.
To conclude, the Bilaspur Declaration offers the hope that Indian legal education will turn round and look at the constitutional mandate on responding to the unmet justice needs of the large body of rural and tribal communities in the near future. Professions are, after all, for the people and no profession can survive without their trust and support. The earlier this is recognised by the organised Bar and the government, the better it will be for the country and the professions themselves.
(Professor Madhava Menon is IBA Chair on Continuing Legal Education at National Law School of India, and a Member of the Advisory Council to the National Mission on Justice Delivery and Legal Reform, Government of India.)
It is a unanimously held view that the rule of law and the independence of the judiciary should in no manner be compromised. It is widely perceived that the collegium system has not worked well and requires extensive reforms.
The provisions of the Constitution (120th Amendment) Bill later corrected as the Constitution (99th Amendment) Bill read with the Judicial Appointments Commission Bill, 2013 (JAC Bill), if adopted, will emasculate an independent judiciary and will pose a grave threat to the rule of law. The Constitution Amendment having been passed by the Rajya Sabha on September 5, 2013 is coming up before the Lok Sabha in the winter session.
Our Supreme Court has said “[the] Rule of Law is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. The independence of the judiciary is an essential attribute of the Rule of Law.”
The court has also observed: “In India, however, the judicial institutions, by tradition, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. … The constitutional values cannot be whittled down by calling the appointment of judges an executive act.”
The doctrine of separation of powers cannot be stretched so as to set up a mechanism which is capable of being abused by making judicial appointments completely subservient to the will of the executive.
First, the composition of the JAC is the Chief Justice of India (CJI), two senior-most judges of the Supreme Court, the Law Minister, and two eminent persons selected by a panel consisting of the Prime Minister, the CJI and the Leader of the Opposition in the Lok Sabha. It can be modified or altered by Parliament by ordinary law (Article 124A). This configuration of six members is not part of the Constitution and is not constitutionally entrenched. The JAC can be ‘packed’ by pliant elements in future by the executive even by an Ordinance and the JAC can recommend non-meritorious persons even on the basis of caste, religion or loyalty to the government.
The appointment of the CJI, the CJ of High Courts, and judges of the Supreme Court and the High Courts and transfer of High Court judges are to take place on the recommendation of the JAC. Thus, a JAC can, even by a majority, recommend a junior judge of the Supreme Court to be a CJI — or even a Chief Justice or judge of the High Court can be recommended to be the CJI. Further, with six members as contemplated in the JAC, a casting vote for the CJI is essential.
Secondly, there is no provision recognising the convention that the senior-most Supreme Court judge will be appointed as the CJI (unless physically impaired) — a constitutional convention adhered to from 1950 except for the two supersessions concerning Justice A.N. Ray and Justice M.H. Beg. Such a provision will prevent lobbying and will preserve collegiality in the apex court.
Thirdly, the JAC Bill provides that the Central government will appoint the officers and employees of the Commission, making its secretariat a government department. This is the most dangerous provision. The officials and personnel of the Commission should be appointed in the same manner as those of the Supreme Court (Article 146), viz. by the CJI or such other judge or officer of the court as he may direct. If the secretariat or officers and servants of the JAC are treated as government departments, there are a hundred ways of making the JAC dysfunctional. In addition, the confidentiality and secrecy of the JAC deliberations cannot be maintained. The importance of an independent secretariat is a sine qua non for an independent and politically neutral JAC.
Fourthly, all expenses including salaries, allowances and pensions should be charged upon the Consolidated Fund of India as provided for the Supreme Court and the High Courts (Article 146 and 229). The JAC must be financially independent of executive budgetary control.
Finally and, most importantly, the criticism against the collegium system was lack of transparency, no consultations with the Bar, favouritism, the lack of a level-playing field for meritorious members of the Bar, no list of potential candidates prepared after advertisements and nominations to be put up in the public domain and lack of guidelines and criteria in the selection process. These core concepts must be incorporated in the Constitution Amendment and not left to be addressed by the Central government or the JAC. One opaque collegium need not be substituted by another, raising the apprehension that future vacancies may be shared by internal accommodations within the JAC.
The above pernicious shortcomings are ticking time-bombs which can be detonated at any time by a powerful executive having a parliamentary majority in the future — and we are looking at a future which may extend to many years.
If these flaws are removed and appropriate ancillary provisions are made in the Constitution Amendment Bill itself, the entire judicial reform can be part of the Constitution and the JAC Bill will become wholly redundant.
It is worth recalling that the provisions of the Bills were never communicated to the Bar for a robust debate, in spite of a written request by leading members of the Bar in April 2013. The two Bills were gazetted and tabled in the Rajya Sabha on August 29, 2013. On September 5, 2013, the Constitution Amendment Bill was passed in the Rajya Sabha by 131 votes in favour and a single vote by Ram Jethamalani in opposition. The JAC Bill has been referred to a parliamentary committee. This great hurry reminds one of the amendments passed during the Internal Emergency — the 39th Amendment moved on August 6, 1975, and passed on August 8, 1975; the 40th Amendment moved on May 18, 1976, and passed on May 27, 1976; the 41st Amendment moved on August 18, 1976 and passed on August 30, 1976; the 42nd Amendment moved on August 28, 1976, and passed on November 11, 1976.
Reactions to the Bill
The views of former CJI M.N. Venkatachaliah (who headed the National Commission to Review the Working of the Constitution) as reported mention that it would be dangerous if the primacy of the CJI in the appointment process was done away with — it would be against the basic structure of the Constitution. Two other former CJIs are reported to have strong reservations about the JAC being altered by a simple majority and even somebody other than the CJI being made chairperson of the JAC (Indian Express, September 6, 2013).
If the Bills in the present form are passed without eliminating the pernicious features, a serious constitutional challenge is likely to be mounted on the ground of violation of the basic structure by undermining an independent judiciary and consequently the rule of law. These are not imaginary fears. Who expected constitutional amendments which effectively emasculated judicial review being passed during the Internal Emergency after detaining all Opposition leaders, gagging the press and controlling the media and intimidating High Court judges by punitive transfers?
Modus Vivendi: possible consensus
Is a consensus possible? Dr. Rajendra Prasad in his speech in the Constituent Assembly on the eve of the adoption of the Constitution said: “We have prepared a democratic Constitution. But a successful working of democratic institutions requires in those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. … After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…”
The Law Minister in his speech delivered in Hindi in the Rajya Sabha on September 5, 2013, said that Parliament had great respect for the judiciary and that the independence of the judiciary should not be impaired. There seems to be some rethinking by the government in regard to the composition of the JAC being entrenched in the Constitution.
It is a unanimously held view that the rule of law and the independence of the judiciary should in no manner be compromised. It is widely perceived that the collegium system has not worked well and requires extensive reforms.
If the amendment is passed with the pernicious flaws indicated above, it is likely to create enormous tensions between the Bar and the judiciary on the one side and the executive on the other — a bruising confrontation which could well be avoided before the coming general elections.
It is hoped that our political leadership will rise to a level of statesmanship to give substance to the prophetic words of Rajendra Prasad, and bring judicial reforms while preserving the rule of law supported by an independent judiciary.
(Anil Divan is president, Bar Association of India. firstname.lastname@example.org)
Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future.
At the Bharatiya Janata Party’s recent Lalkar rally in Jammu, its prime ministerial candidate, Narendra Modi, called for a debate on Article 370. This is encouraging and suggests that the BJP may be willing to review its absolutist stance on the Article that defines the provisions of the Constitution of India with respect to Jammu and Kashmir. Any meaningful debate on Article 370 must, however, separate myth from reality and fact from fiction. My purpose here is to respond to the five main questions that have already been raised in the incipient debate.
Why it was incorporated
First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: “Why this discrimination please?” The answer was given by Nehru’s confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”
The involvement of the United Nations brought an international dimension to this conflict, an “entanglement” which would end only when the “Kashmir problem is satisfactorily resolved.” Finally, Ayyangar argued that the “will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.” In sum, there was hope that J&K would one day integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article), but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement.
Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel relationship to Manichean terms is to caricature history, and this is equally true of their attitude towards Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir. He wrote: “Like some supremely beautiful woman, whose beauty is almost impersonal and above human desire, such was Kashmir in all its feminine beauty of river and valley…” Patel had a much more earthy and pragmatic view and — as his masterly integration of princely states demonstrated — little time for capricious state leaders or their separatist tendencies.
But while Ayyangar negotiated — with Nehru’s backing — the substance and scope of Article 370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly (including Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And while Patel was deeply sceptical of a “state becoming part of India” and not “recognising … [India’s] fundamental rights and directive principles of State policy,” he was aware of, and a party to, the final outcome on Article 370.
Indeed, the synergy that Patel and Nehru brought to governing India is evident in the negotiations over Article 370. Consider this. In October 1949, there was a tense standoff between Sheikh Abdullah and Ayyangar over parts of Article 370 (or Article 306A as it was known during the drafting stage). Nehru was in the United States, where — addressing members of the U.S. Congress — he said: “Where freedom is menaced or justice threatened or where aggression takes place, we cannot be and shall not be neutral.” Meanwhile, Ayyangar was struggling with the Sheikh, and later even threatened to resign from the Constituent Assembly. “You have left me even more distressed than I have been since I received your last letter … I feel weighted with the responsibility of finding a solution for the difficulties that, after Panditji left for America … have been created … without adequate excuse,” he wrote to the Sheikh on October 15. And who did Ayyangar turn to, in this crisis with the Sheikh, while Nehru was abroad? None other than the Sardar himself. Patel, of course, was not enamoured by the Sheikh, who he thought kept changing course. He wrote to Ayyangar: “Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people.” But it was Patel finally who managed the crisis and navigated most of the amendments sought of the Sheikh through the Congress party and the Constituent Assembly to ensure that Article 370 became part of the Indian Constitution.
Third, is Article 370 still intact in its original form? One of the biggest myths is the belief that the “autonomy” as envisaged in the Constituent Assembly is intact. A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State. In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.
Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended.
Fifth, is Article 370 a source of gender bias in disqualifying women from the State of property rights? Article 370 itself is gender neutral, but the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — was thought to be discriminatory. The 1927 notification included an explanatory note which said: “The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.” This was widely interpreted as suggesting also that a woman from the State who marries outside the State would lose her status as a State subject. However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights.
Finally, has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. There is no contradiction between wanting J&K to be part of the national mainstream and the State’s desire for self-governance as envisioned in the Article.
Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State. Not surprisingly, at the opposition conclave in Srinagar in 1982, leaders of virtually all national parties, including past and present allies of the BJP, declared that the “special constitutional status of J&K under Article 370 should be preserved and protected in letter and spirit.” A review of its policy on Article 370, through an informed debate, would align today’s BJP with the considered and reflective approach on J&K articulated by former Prime Minister Atal Bihari Vajpayee. Only then would the slogans of Jhumuriyat, Kashmiriyat and Insaniyat make real sense.
(Amitabh Mattoo is Director, Australia India Institute, Professor of International Relations, University of Melbourne and Jawaharlal Nehru University.)
Renowned jurist and senior Supreme Court lawyer Fali S. Nariman underlines the need to do away with the collegium system, talks about why the SC judgment on convicted lawmakers is correct, and why ministers should have defended the Section 8(4) ordinance after Rahul Gandhi’s outburst in an interview to Maneesh Chhibber.
Should the collegium system be replaced?
There are many things in the [Judicial Appointments Commission] bill I may not agree with. But there is no doubt in my mind that the collegium system is not working well. There has been no sense of accountability, or of transparency. It is difficult to start criticising what judges do in their non-judicial capacity, because this is a new and different role that judges have taken upon themselves of recommending appointments/ promotions. We need to understand that the role of judges in this, when it was brought in, was intended to take the government off the back of the people. This is because the government at that time had openly propagated that it wanted a judiciary “committed” to its ideology. This was dangerous. So the judges of the Supreme Court said, rather than let the executive do what they wanted, let’s have this collegium system instead. This was an experiment and it was supposed to work, and it would have, if only people had paid a little more attention. Unfortunately, judges simply don’t have the time, they are so overworked in court. That is why this system has failed. What if the new system doesn’t work?
I am not saying that the Judicial Appointments Commission will be the panacea for all present ills concerning appointments in the higher judiciary, but we have to make the new system work. We could not make the collegium system work and by we, I do mean the collective we. I am not blaming only the judges. The collegium system created two different classes among judges: the first five (or first three in the beginning) — were the superior judges, and then there were the rest. They didn’t know what was happening within the first three or five. If we had adopted a system that said that a broad consensus of all judges in the SC would agree on who to recommend for an appointment or promotion, I would have no problem with that system.
Do you agree with the assertion that the judiciary is interfering too much in the domain of the executive?
No, I don’t buy this claim at all. I regret to say that this view is being propagated, unfortunately, by some of our judges too — but only after they retire! I don’t share the view that the courts are transgressing their powers. In any case, I have noticed that when governments in office command a large majority of members of legislatures, the courts do not interfere, except when executive or legislative power is abused. When governments are weak, some judges do impose their ex cathedra off-the-cuff opinions on the government. Hence this talk of “judicial interference”.
Many are criticising the Section 8(4) judgment, saying the matter should have been decided by a Constitution Bench. You were the lawyer for the petitioner Lily Thomas. Your views?
I cannot applaud the judgment because I did appear for the winning side. But, in my humble view, it was, and is, a correct judgment in law. Others may disagree and are entitled to say so. In my view, in the SC, no case of importance to the public should be decided by less than three judges. Earlier, we didn’t have many judges. Now that we have more judges, cases that are precedents should be decided by at least a three-judge bench. I think the chief justice
is trying to do something about this, having more and more three-judge benches. And a matter like this could certainly have been decided by a larger bench. But a bench of two judges, when constituted, must decide the cases put up before it, unless there is another bench decision of two judges taking a particular view with which this bench of two disagrees — in which case, it will be referred to a larger bench of three or five judges. But I see nothing wrong with this particular judgment. The reasoning was as follows: disqualification [in case of conviction] is to be prescribed by Parliament by ordinary law. This is expressly provided for in the Constitution (Article 101). But an exception to disqualification cannot be prescribed by ordinary law, because the Constitution does not permit it. Whenever an explanation or exception to “disqualification” is intended, it has to be in the Constitution itself. Section 8(4) is an exception to the sections on disqualification, that is, Sections 8(1) 8(2) and 8(3). But Section 8(4) — which is an exception — is not in the Constitution itself. This is why Section 8(4) was struck down as ultra vires and unconstitutional.
But Parliament, in its constituent capacity, always has the last word. If you want to provide for an exception to disqualification, you have to do it by amending the Constitution. If that is the wish of Parliament as a constituent body, then it would be alright for convicted criminals to remain in the House, not otherwise. But, as of now, the government doesn’t seem to be agreeable to the idea of amending the Constitution to provide for this, obviously because the government of the day does not want to be seen to be supporting persons already convicted and sentenced to imprisonment for two years or more.
Do you think Rahul Gandhi diminished the prestige of the office of prime minister when he trashed the ordinance?
That is a different matter not connected with law. You must ask him. He’s done it. It only shows somebody is frank and a bit hot-headed as well, and doesn’t have the so-called “maturity” of other politicians. This is because he is not a fence-sitter. Of course, his utterance did undermine the position of the prime minister but this was done openly and in an era that looks for plainspeaking, I would not deplore it.
But, should a party leader criticise,
in such strong words, a decision of the cabinet?
I would throw back at you another question — why didn’t the ministers support the prime minister? Ask why senior ministers did not speak out after Rahul Gandhi had spoken. Why didn’t they say that it was on their advice that the PM had acted? The embarrassment to the PM was not caused by Rahul Gandhi as much as by the silence of the other members of the Council of Ministers.
But what about the manner in which the ministers in government reacted after Rahul Gandhi spoke out, dumping both the ordinance and the bill without any defence of the cabinet decision?
That is the sad and unfortunate part. There is no principle left in politics, only loads of hypocrisy. Shakespeare was right: “the fault, dear Brutus, is not in our stars, but in ourselves that we are underlings”.
Three judges of the Supreme Court, including the Chief Justice of India, have come to the conclusion that Sushil Sharma does not deserve the death penalty for murdering his wife, Naina Sahni, and trying to dispose of her body by burning it in a tandoor. It is no secret that India’s death penalty jurisprudence, at all levels of the judiciary, is in a shambles and the reasoning adopted in Sushil Sharma’s judgment raises very serious concerns about the justice that has been meted out to 22 individuals on the verge of execution after their mercy petitions were rejected by the President (four of them by Pratibha Patil and 18 by Pranab Mukherjee).
While a five-judge Constitution Bench of the Supreme Court is scheduled to hear the pleas of 18 of the 22 individuals only on the issue of delay caused by the State in deciding their mercy petition, the issue that I want to explore in the context of the Sushil Sharma case is the manner in which they were sentenced to death. In terms of the law, not all murders, terrorist acts, rapes and murders, acts of treason, etc attract the death penalty. The “rarest of the rare” doctrine was introduced in Bachan Singh to lend some coherence to instances in which the death penalty might be justified by balancing aggravating and mitigating circumstances. However, the “rarest of the rare” doctrine has evolved into one of the most misunderstood and misapplied doctrines not just in public discourse but even in judicial pronouncements from courts at all levels.
The “rarest of the rare” doctrine is often misunderstood as referring only to the heinousness of the crime. The focus is equally meant to be on the mitigating circumstances of the person including whether it has been decidedly shown that she is beyond reformation.
Reasons for commutation
The Court seems to have placed significant weight on the point that the State had not led any evidence to show that Sushil Sharma was beyond reformation. These are very important moves by the Court as it is a clear attempt to move away from multiple judgments in the past where the focus was only on the brutal nature of the crime. This is an important step in the inevitable course correction that the Supreme Court will have to undertake on the manner in which it examines aggravating and mitigating circumstances in death penalty cases.
By taking the position that the State, while demanding the death penalty, should demonstrate that the individual will revert to such crimes, the Court has brought the focus back on the mitigating circumstances and the appropriate burden on the State. It is this aspect of reformation that was articulated in Bachan Singh that has been ignored most often and the obligation is most certainly on the State to show the impossibility of reformation. It is of course not the position in Bachan Singh that any one factor can trump all others and Courts are meant to balance aggravating and mitigating circumstances. Reformation is an issue that is relevant to all prisoners who appear before the Court irrespective of the nature of the crime, age, sex and social background. If judges want to balance away the interests of reformation in favour of other factors, Courts must be left free to do so. However, there must be an obligation and culture of justification as far as reformation of the death row convict is concerned. As judges seal the fate of the convict, the least they must do is explain the evidence presented before them that led to the conclusion that the convict could not be reformed. If no such evidence is presented before the Court, there must be a presumption of reformation and judges must meet a high threshold of justification if they want to override that presumption. A disingenuous strategy adopted in many judgments confirming the death penalty has been to cite the brutality of the crime as indicative of the impossibility of reformation. To argue that an individual cannot be reformed because of the crime she has committed is a perverse articulation of what was intended in Bachan Singh.
Sushil Sharma has certainly benefited from the substantial weight assigned to reformation as envisaged in Bachan Singh. But the 22 individuals who stand on the verge of execution have not had the benefit of such enquiry into the possibility of their reformation. Apart from highlighting the brutality of the crime, in none of their cases did the State lead any evidence on reformation and unlike in Sushil Sharma’s case, neither did any judge ask the State why it had not presented any such evidence. We must have no illusion that we have brought these 22 individuals extremely close to their death without any court of law in this country having paid adequate attention to the possibility of their reformation.
Almost all of these 22 individuals have spent a very long time in prison and it reflects the lack of humanity in our legal system that we have no mechanism to evaluate the changes they have undergone. The most tragic aspect of death sentences in India is that we often have an image of the prisoner that is frozen in time. It is an image of her when she committed the crime and our moral judgment of the person at that point of time is all that seems to matter. There is no place in our public and legal imagination for the effects of long periods of incarceration. Some of them are the most trusted prisoners in the jails in which they are lodged, some others contribute to the administration of the jail by maintaining records and teaching other prisoners about work they could do in jail, some others have picked up skills and earned degrees while simultaneously having introspected about their time in jail. Of course it is not just about the good things. Incarceration and differing levels of alienation from their families have left many of them extremely mentally vulnerable, displaying signs of severe depression and psychosis. In that sense, these 22 individuals have suffered a double injustice. Neither was the possibility of their reformation explored at the time of sentencing them to death nor is the system interested in evaluating them as individuals as they are today.
It would be unconscionable to hang any of these 22 individuals without considering the issue of reformation meaningfully. Otherwise, it starts to look like there is one standard of justice for people like Sushil Sharma and quite another standard when it comes to Shivu, Jadeswamy, Maganlal, Jafar Ali, Gurmeet Singh, Suresh, Ramji, Perarivalan, Murugan, Santhan, Saibanna, Simon, Madaiah, Gynanaprakasan, Bilavendra, Dharampal, Sonia, Sanjeev, Praveen Kumar, Bhullar, Umesh and Sundar Singh.
(Anup Surendranath is the director of the Death Penalty Research Project at the National Law University, Delhi.)
The Environment Ministry has systematically undermined the National Green Tribunal, giving expert committees a free hand to grant forest clearances to private projects
The Ministry of Environment and Forests (MoEF) has adopted a confrontationist approach with the National Green Tribunal (NGT). In its recent affidavit before the Supreme Court of India, the ministry stated that the tribunal has “exceeded its brief” and caused it “embarrassment” in Parliament. The affidavit was withdrawn and time sought to file a proper affidavit. The Supreme Court even threatened to stay the operation of the tribunal in view of the hostile approach of the MoEF towards the green body.
It is therefore necessary to trace the reasons for this “conflict” and “embarrassment” and the implications of staying the operation of the tribunal.
The NGT is a Statutory Tribunal and was created by Parliament as a specialised judicial and technical body to adjudicate on environmental disputes and issues. The enactment of the NGT Act, 2010 was itself an outcome of a long process and struggle. The Supreme Court in a number of cases highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialised environmental court. Though the credit for enacting the NGT Act, 2010 goes to the then Environment Minister Jairam Ramesh, it became functional only because of repeated directions of the Supreme Court while hearing the Special Leave Petition titled Union of India versus Vimal Bhai (SLP No 12065 of 2009). The recent developments and the hostile approach of the MoEF towards the NGT seems to suggest that the aim of Mr. Ramesh’s successor (Jayanthi Natrajan) is to dismantle the tribunal.
Despite all the hurdles including financial and administrative bottlenecks, the NGT has emerged as a new hope for the environmental movement in the country. The NGT Act is no less important than the Right to Information Act, 2005, the Right to Food Bill and the National Rural Employment Guarantee Act, 2005. Environmental degradation affects livelihoods, health and access to food. Environmental struggles most often aim at ensuring that information about proposed projects (Environment Impact Assessment reports), air and water quality data is shared with the people. Over the last two years, the NGT has delivered 185 judgments on various environmental issues. The MoEF together with the Central Ground Water Authority, the Central Pollution Control Board and the various State governments have been forced to wake up from years of slumber and total inactivity. One of the most significant powers of the NGT is the capacity to do “merit review” as opposed to only “judicial review.” Under the writ jurisdiction of the High Court or Supreme Court, the courts are essentially concerned with the “decision making process” and not the “merits” of the decision. As a merit court, the NGT becomes the primary decision maker and therefore can undertake an in-depth scrutiny into not just the law but also the technical basis of a particular decision.
A new jurisprudence on the environment is steadily emerging in the country and is an example for the rest of the world. Today, nearly 50-60 Appeals and Applications are heard each working day before the various benches of the NGT. At a time when Environment Impact Assessments reports are a blind “copy and paste,” job where public hearings are a “mockery” and non-compliance with environmental rules and regulations are the order of the day, the NGT serves to restore faith in the “Rule of law.”
Why is the MoEF not keen to see the NGT functioning? The answer is quite simple. The conduct of the ministry as well as the various statutory bodies on the environment has never been called into question in a systematic manner and its decisions have rarely been subject to any “merit review.” This has given a free hand to the various expert committees, boards and the officials as well as the Minister to arbitrarily grant approval to projects disregarding the environmental and social impact of projects and most often in violation of laws and rules. The recent report of the Comptroller and Auditor General of India (CAG) clearly proves the casual manner in which forest clearance issues have been dealt with by the MoEF as well as the State governments mostly to favour private companies. History tells us that the MoEF’s designs have largely succeeded. Post the Bhopal disaster, the National Environment Tribunal Act was passed by Parliament in 1995 to fix liability on a polluter. It never became operational. The National Environmental Appellate Authority set up through an Act of Parliament in 1997 was made defunct by the MoEF and led the Delhi High Court to conclude that the intention of Parliament to set up an effective grievances redressal forum has been defeated.
The recent affidavit is a wake-up call to those trying to protect the environment, the rights of communities as well as ensuring greater accountability in the government’s functioning. If the MoEF succeeds in its design, it would mean its third success in stalling a parliamentary legislation meant to keep a watch on its activities and decisions and protecting the rights of communities.
(Ritwick Dutta is an environmental lawyer and managing trustee of Legal Initiative for Forest and Environment.)
How many slaves work for you? Paradoxically — in 2013 — the question is still very relevant, and you might be surprised by the answer. Depending on where you live, what you buy, what your lifestyle is, you have almost certainly been touched by slavery. Almost nobody is clean.
Modern-day slavery takes many forms: human trafficking, forced and bonded labour, sexual exploitation, domestic servitude and forced marriage. Sadly, the list goes on. But the common denominator of all these crimes is the evil intention to strip human beings of their freedom, and then to use, control and exploit them.
There are currently 29.6 million slaves around the world, more than ever before in history, and roughly equivalent to the population of Australia and Denmark combined. Modern-day slavery is a fast-growing industry worth $32 billion a year, equal to the profit of McDonald’s and Walmart combined. And while back in 1809, the price of a slave — adjusted to today’s value — was $40,000, today it is only $90; that’s how little it costs, in the globalized economy, to buy a human being!
Slavery is a global issue. In some parts of the world people are still being born into hereditary slavery, in others people are trafficked from one state to another, have their passports taken away and are enslaved. Modern-day slaves walk among us. You might tip one during your stay at respectable hotels chains around the world, you might speak to them at your nail salon. They look like maids, regular workers, but they are slaves.
It’s a story of debt, fraud and coercion. In the majority of western countries, trafficking is tied to immigration. It’s estimated that every year between 14,500 and 17,500 people are trafficked into the United States. Some enter legally, with a visa and a job. But that job is subcontracted, hiding the harsh reality of abuse and exploitation behind the façade of a clean uniform. Once inside the country, those trafficked are forced to repay recruitment fees, the cost of their travel, accommodation bills. As a result, they end up working an incredible number of hours, seven days a week, without being paid, in the impossible attempt to repay a debt which will never be settled. That’s how many become slaves.
Modern-day slaves are found in unexpected places. In recent years, Washington, the capital of the free world, has been rocked by allegations of human trafficking by diplomats working at embassies and international institutions. In 2007, a young Tanzanian woman who had been brought to the United States by a diplomat as a domestic worker, made headlines when she sued her former employer and his wife for allegedly trafficking her and using her for forced labour. The woman, who spoke no English, was promised a job as a housekeeper with a fair wage, but instead was forced to work 16-hour days without pay. She had her passport taken away, was not allowed to leave the house on her own, and was denied medical treatment. The woman eventually won over $1 million in compensation but her former abusers returned to East Africa and never paid her. Diplomats are not immune to shame.
There are currently 880,000 people engaged in forced labour across the European Union. 58 percent are women, the majority victims of sexual exploitation — the most lucrative form of slavery. In the UK the number of slaves is believed to be 4,600. Victims are mostly trafficked from Africa, but also Asia and Eastern Europe. Most of them cross the border illegally, and once in the UK are forced mainly into sex work (62 percent) and domestic servitude (25 percent), but are also exploited though complex schemes involving welfare benefit fraud. In the UK, slaves work in restaurants, nail salons, door-to-door leafleting. A big role is played by the Vietnamese drug barons who, according to DrugScope, control two-thirds of Britain’s cannabis trade. They use nail salons as brothels and places to launder money raised from the sale of cannabis grown on suburban UK farms. Farms run by slaves.
The difficulty with slavery is that it is a crime not well understood, and often concealed under the justification of custom, ethnicity, even religion. In Mauritania 4 percent of the population is presently enslaved. Adults and their descendants are the full property of masters who can buy and sell them. They are born into slavery and are not allowed any possessions. They are the possession, predominantly, of the White Moors, one of the three ethnic groups of Mauritanian society. Enforcing anti-slavery laws here remains extremely challenging since only victims are allowed to file a complaint. Slaves are illiterate and do not know their rights. The government continues to deny the scale of the problem, and foreign journalists risk arrest for investigating the issue. This year only two cases of slavery have been reported so far.
India — with a population of over 1.2 billion — has more slaves than any other country in the world: 14.7 million. With extreme poverty culturally tolerated, the practice of caste and debt bondage is endemic. Sexual exploitation of women and children is also widespread, although India has ratified a number of key international treaties aimed at eradicating slavery. Enforcement of such laws remains sporadic and weak, and many NGOs on the ground have reported a lack of support for their efforts to free people from forced labour.
Global statistics show a common trend: slavery is a silent crime. Victims don’t come forward. Across the EU the number of convictions for human trafficking has dropped by 13 percent in the past few years; and the latest US Trafficking in Person Report shows that in 2012, only 7,705 prosecutions took place, despite the number of identified victims reaching 46,570.
There are many reasons for the small number of prosecutions. Victims often don’t see themselves as such, especially victims of sexual exploitation, who tend to develop a psychological dependence on their abuser. Victims of domestic slavery are often foreign nationals who live in conditions of house arrest, unable to speak the language of the country they are in. Then there’s fear, that fear resulting from total annihilation of self-esteem. Slavery is all about controlling people. Some of the things the traffickers make people do are all about humiliating them and trying to control them: you see human beings with the name of their owner tattooed on their body, reminding one of the Nazi period. It’s a lethal mix of abuse of power and corruption, and it thrives in poverty.
Each of us, not just law enforcement agents, has a role to play in the battle against human trafficking. Teachers, doctors, bus drivers, flight attendants, government officials of all ranks, everyone who uses hotels, restaurants, nail salons is potentially in contact with modern-day slaves, and has a moral responsibility to come forward. As consumers we have the duty to demand to know more about the origin of the products we buy. We must not turn a blind eye.
Businesses must demand real transparency from sub-contractors, assessing the real working conditions of those in remote supply chains. On the other hand, governments should take bolder action to make businesses accountable, fining the hiring firms for violations of national employment laws committed by their subcontractors. This is the innovative approach recently adopted by the State of California.
Governments must consider slavery as a crime, not an immigration issue. Victims must be reintegrated in society with the necessary economic and psychological support. Earlier this year, in the UK, three very young victims of human trafficking were prosecuted, convicted and jailed for the very crimes their traffickers forced them to commit. In the words of the barrister who fought, successfully, to have the sentence overturned, this was a ‘miscarriage of justice’. In the United States, a first victory has been won as victims of human trafficking now have the right to stay in the country while suing their perpetrators, using U.S. law.
Lawyers must work to ensure that all victims of human trafficking have access to free legal representation, compensation and restitution of a sum of money equivalent to their unpaid work. A groundbreaking approach has been taken by the Netherlands, where since 2011 Dutch authorities have eight months to collect the restitution money. If they fail, the government has committed itself to paying restitutions directly to all victims.
Governments must also end the culture of impunity for the traffickers and the offenders, whoever they are. Slavery should trump all diplomatic immunities, and should be fought on an international basis, helped by all parties who can contribute to successful prosecutions.
The financial industry must be vigilant. Earlier this year the Thomson Reuters Foundation and the Manhattan District Attorney Cyrus R. Vance Jr, launched an international financial working group against human trafficking. The group — which includes the biggest banks and financial institutions in the United States — has developed criteria to identify financial transactions that are linked to human trafficking and is working with law enforcement agencies to share and improve these processes.
The fight against human trafficking is one, which – as a civilization – we cannot afford to lose. Slavery should belong to the history books. Let’s all work together to put the business of human trafficking out of business.
Human trafficking is one of the themes at the forthcoming Trust Women Conference in London, Dec 3-4. Organised by the Thomson Reuters Foundation and the International New York Times, Trust Women is the conference dedicated to putting the rule of law behind women’s rights.
Follow Monique Villa on Twitter: www.twitter.com/TR_Foundation
- Lord Advocate: ‘Human trafficking is slavery’ (scotsman.com)
- Modern Slavery: Broken Promises and a Life of Captivity (theepochtimes.com)
- Monique Villa: They Walk Among Us – 30 million people are slaves, half in India (huffingtonpost.com)
- Revealed: India is home to nearly half of world’s 30 million modern-day slaves – euronews (euronews.com)
- Dubious distinction: India has half the world’s modern slaves, study shows (timesofindia.indiatimes.com)
- They walk among us (devex.com)
- A stain on humanity: 29million slaves worldwide (metro.co.uk)
- Nearly 30 million people in slavery: report (abc.net.au)
- Global Slavery Index Reveals More Than 29 Million People Living In Slavery (eurasiareview.com)
A Punjab and Haryana High Court decision to halt the framing of charges in the graft case against its former judge Justice Nirmal Yadav raises disturbing questions about judicial accountability
When Anupam Gupta, special public prosecutor for the CBI in the “cash at the doorstep” corruption case against former judge of the Punjab and Haryana High Court Nirmal Yadav, burst out in anger against the High Court’s recent decision to halt the framing of charges against her, it cast a shadow of disquiet on possibly the most watched prosecution of a judge in the higher judiciary in recent times.
In a written statement he said, “I am deeply distressed by the High Court’s order passed today. It betrays an insensitivity to judicial corruption that cannot be viewed with equanimity. The High Court cannot have a dual approach or standard — one for judges and another for all other accused. Would the High Court have passed this order if the principal accused had not been a former High Court Judge?”
His statement, duly reported by newspapers, was greeted by pin drop silence in the legal universe. That Mr. Gupta is a well known activist on judicial accountability is one reason why his outburst was not immediately dismissed as a mere reaction to a legal setback in court. The other is, because each time in the last couple of years it appeared that the case against Justice Yadav would be dropped, the lawyers of the Punjab and Haryana High Court rose as one to ensure its continuation.
Justice Nirmal Yadav is being tried for allegedly receiving illegal gratification of Rs.15 lakh in August 2008. The money was wrongly delivered at the residence of another lady judge of the High Court, who reported the matter to the Chandigarh police. In March 2011, the President granted sanction to prosecute her under Section 19 of the Prevention of Corruption Act and she became the first serving high court judge in the country to be charge sheeted in a corruption case.
In July this year the CBI court in Chandigarh finally ordered charges to be framed against her, but Justice Yadav filed a revision petition before the High Court against the order, saying that it was “illegal, erroneous and untenable in the eyes of the law.” Hearing the petition, Justice N.K. Sanghi summoned the entire record of the CBI court and directed that her petition be heard within three months. This in effect means that until the High Court decides on her petition, the trial will remain frozen before the trial court.
Speaking to The Hindu, Mr. Gupta says: “Justice Sanghi failed to observe the elementary precaution and propriety of issuing notice to the CBI and hearing it before passing the September 13 order. By requisitioning the trial court’s record, the Judge has, for all practical intents and purposes, disabled the Special Judge, CBI, from proceeding any further with Justice Nirmal Yadav’s trial for a virtually indefinite period of time. Given the practice in the High Court and the volume of litigation before it, the prospect of Justice Yadav’s petition being finally decided by the High Court within three months is far too remote to be believed. A cynic would not be wrong in assuming that, despite its gravity, the case has been put in the cold storage.”
Strong words these and his statement was eagerly circulated in the approving bar.
When asked by The Hindu for his response to Mr. Gupta’s allegations, Justice Sanghi declined comment but did say that if at all he does respond, it will be through his orders.
The ruckus now is because in July the CBI judge Vimal Kumar had given a 61-page order in which he rejected the defence taken by Justice Yadav and the co-accused, ruling that “there was overwhelming evidence” against all of them. He had pointed out contradictions between the statements of Justice Yadav and the other accused. While she had denied all the happenings of August 2008 and claimed that she is being framed, the others accused in the case have admitted the same to some extent.
Cash for verdicts
Earlier during investigations, the CBI had uncovered shocking details of several much bigger cash transactions allegedly received by Ms Yadav in exchange for giving favourable verdicts. In one she even quashed an FIR under Sec 482 of CrPC in a murder case in 2006, for which she allegedly received Rs.50 lakh. These details — that emerged from custodial interrogation of a co-accused, who had arranged for the Rs.15 lakh to be delivered to Justice Yadav’s residence — are in the report of the Superintendent of Police and was brought to the notice of the court. The contents of the SP’s report, kept under wraps till a couple of months ago, (reported in The Hindu on August 4) were also forwarded to Justice S.H. Kapadia, the then Chief Justice of India (CJI) who had in July 2010 given sanction to prosecute the judge. These findings however were not included in the charge sheet.
But stranger things have happened in this case. In December 2009, the CBI taking a plea that it has not received sanction from the CJI to prosecute the judge, filed a closure report. The plea was based on a letter from the Law ministry stating that the then CJI, Justice Balakrishnan, had observed “that no action was required for the present” in the matter. The High Court Bar Association slammed the action of the CJI and intervened in the case to oppose the closure.
Justice Balakrishnan clarified through a statement issued by his office that he had not received any request to prosecute the judge and that the CBI had not even shown him its final report in this regard. In March 2010 the trial court rejected the closure report and ordered further investigation. In the eventuality, the proposal to sanction the prosecution of Justice Yadav was moved before the CJI three months later following which the President who is the competent authority to grant sanction to prosecute the judge, did so in March 2011.
Justice Yadav has retired but is believed to wield considerable influence through her brother, a cabinet minister in Haryana. Mr. Gupta on the other hand has announced that he is collecting material and will be writing to the CJI soon. With the trial stalled amid these serious allegations that raise questions about the impartiality of the judiciary towards one of its own, there is nothing to indicate as of now, if the air will be cleared anytime soon.