SUPREME COURT OF INDIA

ARVIND P DATAR IN THE HINDU

The judgment in Kesavananda Bharati v State of Kerala, whose 40th anniversary falls today, was crucial in upholding the supremacy of the Constitution and preventing authoritarian rule by a single party

Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!

Core question

All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?

Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?

The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.

Supreme Court v Indira Gandhi

It is supremely ironical that the basic structure theory was first introduced by Justice Mudholkar eight years earlier by referring to a 1963 decision of the Supreme Court of Pakistan. Chief Justice Cornelius — yes, Pakistan had a Christian Chief Justice and, later, a Hindu justice as well — had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.

The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government, then headed by Mrs Indira Gandhi. In 1967, the Supreme Court took an extreme view, in the Golak Nath case, that Parliament could not amend or alter any fundamental right. Two years later, Indira Gandhi nationalised 14 major banks and the paltry compensation was made payable in bonds that matured after 10 years! This was struck down by the Supreme Court, although it upheld the right of Parliament to nationalise banks and other industries. A year later, in 1970, Mrs Gandhi abolished the Privy Purses. This was a constitutional betrayal of the solemn assurance given by Sardar Patel to all the erstwhile rulers. This was also struck down by the Supreme Court. Ironically, the abolition of the Privy Purses was challenged by the late Madhavrao Scindia, who later joined the Congress Party.

Smarting under three successive adverse rulings, which had all been argued by N.A. Palkhivala, Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golak Nath, Bank Nationalisation and Privy Purses judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right.

These drastic amendments were challenged by Kesavananda Bharati, the head of a math in Kerala, and several coal, sugar and running companies. On the other side, was not only the Union of India but almost all the States which had also intervened. This case had serious political overtones with several heated exchanges between N.A. Palkhivala for the petitioners and H.M. Seervai and Niren De, who appeared for the State of Kerala and the Union of India respectively.

The infamous Emergency was declared in 1975 and, by then, eight new judges had been appointed to the Supreme Court. A shocking attempt was made by Chief Justice Ray to review the Kesavananda Bharati decision by constituting another Bench of 13 judges. In what is regarded as the finest advocacy that was heard in the Supreme Court, Palkhivala made an impassioned plea for not disturbing the earlier view. In a major embarrassment to Ray, it was revealed that no one had filed a review petition. How was this Bench then constituted? The other judges strongly opposed this impropriety and the 13-judge Bench was dissolved after two days of arguments. The tragic review was over but it did irreversible damage to the reputation of Chief Justice A.N. Ray.

Constitutional rights saved

If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule. At any rate, the Constitution would have lost its supremacy. Even Seervai later admitted that the basic structure theory preserved Indian democracy. One has to only examine the amendments that were made during the Emergency. The 39th Amendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi. The 41st Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life. If Parliament were indeed supreme, these shocking amendments would have become part of the Constitution.

Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India continues to be the world’s largest democracy. The souls of Nehru, Patel, Ambedkar and all the founding fathers of our Constitution can really rest in peace.

(Arvind P. Datar is a senior advocate of the Madras High Court.)

By Kalpana Kannabiran Published  in THE HINDU

The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape

Starting with Tarabai Shinde’s spirited defence of the honour of her sister countrywomen in 1882, women’s movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.

A transformation

At a time when despair and anger at the futility of hundreds of thousands of women’s lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women’s subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in “women’s studies” libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?

The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph — the triumph of women’s movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.

Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.

If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.

The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape — with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children.

Arguing that “cultural prejudices must yield to constitutional principles of equality, empathy and respect” (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of “sex” in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation — and the right of all persons, not just women, against sexual assault.

Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars — whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”

In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.

Voices from conflict zones

Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault.

Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?

The Delhi case

The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option. The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women’s groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children’s institutions.

The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential — as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email: kalpana.kannabiran@gmail.com)

By Kalpana Kannabiran Published  in THE HINDU

WE THE PEOPLE

By Shivprasad Swaminathan Published in THE HINDU

How ‘We the People’ came to be the source of authority of the Constitution

This is the story of how and why the framers of the Constitution of India deliberately designed a procedural error in the adoption of the new Constitution with a view to severing the seamless transition of legal authority from the British Crown-in-Parliament to the new Republic of India. The deliberate procedural error consisted in a deviation from the Constitution making procedure prescribed by the Indian Independence Act, 1947 — the law enacted by the British Parliament granting India independence and formally authorising the Constituent Assembly to draft a Constitution for the newly liberated state. To be sure, the framers of the Constitution of India were not the first, and indeed they were not the last to deliberately incorporate such procedural errors in the process of Constitution making. The founders of the Constitutions of several other states including Ireland, Pakistan, Sri Lanka and Ghana, which were being liberated from the British Empire, took such a step. In doing so, they were all motivated by the same goal: that of ensuring constitutional ‘autochthony.’

Constitutional autochthony

The etymological roots of ‘autochthony,’ which is not to be confused with ‘autonomy,’ are to be found in the Greek autos (self) and chthon (earth). The goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil. The dominant academic view in the middle of the 20th Century was that autochthony could not be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority, for autochthony does not so much concern the content of the Constitution as its pedigree: the chain of legal validity authorising it.

This proposition found doctrinal support in the influential theory propounded by the legal philosopher, Hans Kelsen, which had it that it was inconceivable for a legal system to split into two independent legal systems through a purely legal process. One of the implications of Kelsen’s theory was that the basic norm (grundnorm) of the imperial predecessor’s Constitution would continue to be at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as ‘legal’ by the Constitution of the imperial predecessor.

On Kelsen’s account, only an ‘unlawful’ or ‘revolutionary’ act could ensure an autochthonous Constitution by rending asunder all continuity with the imperial predecessor.

Such break in legal continuity is automatically achieved where a former colony’s independence is won as the result of an armed revolution, as was the case with the United States of America. Independence in such instances is not granted ‘legally’ by the Crown-in-Parliament and the Constitution of the newly liberated former colony is in no way authorised by the imperial predecessor. The situation is very different where independence of a former colony is not brought about by armed revolution, but is ‘legally’ granted by the imperial predecessor. This was the case with India, Pakistan, Ireland, Sri Lanka and Ghana whose independence was the result of the British Crown-in-Parliament’s enactment of separate statutes of independence (Independence Act) for each of them. The statutes of independence also set up Constituent Assemblies authorising them to draft new Constitutions for each of these States. Following the constitution-making procedure stipulated in the statute of independence would have meant that the validity of the new Constitution could ultimately be traced to an imperial grant. The mere verbal invocation of We the People as the ‘source’ of authority in such cases would have rung hollow, apart from being jurisprudentially implausible since the source of authority of the new Constitution would continue to be the imperial predecessor’s Constitution. In such cases, it was thought that since there was no ‘revolution,’ one had to be deliberately made up in order to secure an autochthonous Constitution. Accordingly, as John Finnis argues, the framers of new Commonwealth Constitutions took great care to do something illegal “so as to make up a revolution, however contrived.”

Irish influence

The Irish were the pioneers in conceiving the idea of a benign legal revolution geared towards constitutional autochthony. Ireland was granted independence under the Irish Free State Constitution Act, 1922 enacted by the British Crown-in-Parliament which also authorised the Irish Constituent Assembly to draft a Constitution for the newly liberated state. Thus, the Irish Constitution of 1922 was not autochthonous.

Though it was drafted by an indigenous Constituent Assembly, its chain of legal validity could be traced to an imperial statutory grant. With a view to changing this state of affairs, in 1937 the Irish Parliament amended the Constitution by deliberately violating the procedure for amendment stipulated in the 1922 Constitution and put the amended Constitution for acceptance in a referendum. Going one step further, the Irish Parliament also repealed the Irish Free State Constitution Act, 1922 enacted by the British Parliament, though it was not empowered to do so. It is widely accepted that this successfully severed the chain of validity with the Crown-in-Parliament and ensured a truly autochthonous Constitution. The framers of the Indian Constitution appear to have rehearsed the Irish route to autochthony to the extent possible in Indian conditions.

Independence was formally granted to India by the Crown-in-Parliament’s enactment of the Indian Independence Act, 1947 though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this requirement, it did specify that the new Constitution drafted by the Constituent Assembly would have to receive the assent of the Governor General of India, who would assent to such law in the name of the British Crown.

The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of the either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act — something the Constituent Assembly did not have the authorisation to do. In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all the way to the Crown-in-Parliament, thus delivering a completely autochthonous Constitution. In this fashion, We the People, through the members of the Constituent Assembly, came to be the ‘source’ of authority of the Constitution, rather than the authority being traceable to the Indian Independence Act enacted by the British Crown-in-Parliament.

Why did it matter?

This quest for autochthony is likely to come across to some as an abstruse quibble that shouldn’t concern anyone other than the most pedantic legal theorists. There were, however, two reasons why the framers of new Commonwealth Constitutions felt constrained to pay such close attention to it. Firstly, it was feared that the British Crown-in-Parliament could, however improbably, reassert its authority over the newly liberated state by repealing the statute of independence and abrogating the new Constitution. There was, of course, no immediate apprehension of the British taking such a step. All the same, the framers of new Commonwealth Constitutions would have found, as Geoffrey Marshall notes, merely prudential reassurances to be precarious pegs to hang their nation’s independence on. Secondly, for sentimental considerations, the framers would have been loath to let the new Constitution be grounded in an imperial grant or be assented to by the British Crown. They would have wanted the new Constitution to be truly autochthonous, stemming from the authority of We the People so that an independent future could, albeit symbolically, be insulated from a troubled imperial past.

(Shivprasad Swaminathan is Assistant Professor, Jindal Global Law School)

By Shivprasad Swaminathan Published in THE HINDU

BY JONATHAN DERBY PUBLISHED IN THE HINDU

Conviction rates improve when teams of lawyers and social workers supervise progress of individual cases in a spirit of cooperation with officials

Today, the Justice Verma Committee is scheduled to release recommendations on ways to strengthen government’s response to crimes of aggravated sexual assault. There has been a lot of noise in the media calling for harsher punishment for rapists. The demands have only grown louder as details from the barbaric events of the December 16 gang rape and murder in Delhi come to light. While cries for chemical castration and even death for rapists stem from the brutality of the crime, they do not address the root problem: the criminal justice system does not function the way it is meant to function. In fact, the public’s frustration points to a decay of trust in the government’s ability to deliver justice and protect its people.

There have also been quieter, more reasonable voices in the media calling for a stronger, more sensitive, criminal justice system: one that delivers justice swiftly, gives rightful convictions and treats victims with dignity and compassion. While the substantive and procedural rape law is far from perfect, society’s frustration is not based on the inadequacy of the law, but on effective implementation of the law.

The law and reality

In fact, statutory law and Supreme Court and High Court judgments have established a solid legal framework that protects rape victims and requires government authorities to follow victim-friendly procedures. Protections under this legal framework include requiring lawyers and social workers for victims at the police station and for police to take statements in a setting that makes the victim comfortable. At government hospitals, there should be special rooms to examine rape victims, equipped with medical kits that doctors should use to examine the victim and collect crucial evidence. When the victim testifies at trial — vital evidence needed for getting a conviction — it should take place in the judge’s chambers rather than in open court, and whenever possible, before a woman judge. For children, there are even greater protections and accommodations, many of which have been codified in the recently enacted Protection of Children from Sexual Offences Act, 2012. Unfortunately, there is a gap between this legal framework and practice on the ground.

Collaboration works

Of course, the success of any system comes down to the people who work within the system. The great majority of publicity about people who work within the criminal justice system, especially law enforcement officials, has been negative. Maybe the negative publicity is justified and brings needed attention to problems. But constant antagonism is counterproductive; it drowns out the good work countless police officials do every day. Good people dedicated to public service who work long hours for low pay without adequate training and resources. Yes, there are government officials — police officials, medical practitioners, public prosecutors and judges — who must change their attitudes and do their jobs better. At the same time, it is only human nature that if someone consistently hears negative criticism, they tend to become discouraged and desensitised to the feedback. Either they will sink to the level people expect of them or they will stubbornly refuse to raise their professional standards. There is a better approach that builds positive energy: civil society collaborating with government to strengthen the criminal justice system.

Long-term strategies should focus on changing the culture of the criminal justice system so that it is victim friendly and implements the law. But improving performance immediately merely requires government authorities to follow the law already in place. A mechanism needs to hold government authorities accountable when they do not implement the law, regardless of the reason: whether because they are uninformed, do not have a clear understanding of the law, or it is inconvenient to follow.

An effective way to hold government authorities accountable is to have a team comprising a lawyer and social worker, trained to handle cases of sexual violence, advocate for the victim’s interests at the police station till judgment. The team would work on the ground, advising on the law, supporting the victim and monitoring progress of cases. At first they will likely need to confront officials when the law is not implemented. But their broader approach would be one of a spirit of collaboration and cooperation.

In Delhi

In Delhi, the Rape Crisis Cell under the Delhi Commission for Women partners with non-governmental organisations to provide legal and social support to rape victims. The Delhi Commission for Women’s lawyers start providing oversight only at the trial stage. Still, the National Crime Records Bureau reports that in 2011, Delhi NCT had a 41.5 per cent conviction rate in rape cases compared to the 26.4 per cent national conviction rate. In both examples, conviction rates are higher This programme is a good model that provides advocates who represent the victim’s interests, while collaborating with government authorities to strengthen the criminal justice system.

When government authorities collaborate with civil society groups, the criminal justice system functions more effectively: government authorities are more likely to follow victim-friendly procedures, investigations and trials will move more swiftly and conviction rates will rise. When this happens, potential perpetrators will think twice before they aggressively harass women. Women and their families will have greater confidence to report sexual abuse; and society’s faith will steadily grow in the system meant to provide security and protect them.

(Jonathan Derby is a U.S. licensed attorney who has extensive experience in human rights at grass-roots level in India.)

Set up to review current laws on aggravated sexual assault following the brutal gang rape of a young girl in Delhi on December 16 last year, the Justice JS Verma Commission will submit its report to the government tomorrow. It will also make the report public.

The Home Ministry, while notifying the commission on December 24, 2012, had given it a month for the job. The committee has taken less than a month to scan hundreds of representations on the issue agitating the country. Before finalising the report, the committee comprising former Chief Justice of India JS Verma, Justice Leila Seth (former Chief Justice of Himachal HC) and Gopal Subramanian (former Solicitor General) met over 100 women’s representatives from across India.

Importantly, the commission expanded its area beyond the terms of reference the government set for it. The Home Ministry notification had asked it to “review the present laws to provide speedier justice and enhanced punishment in cases of aggravated sexual assault.” But the committee has looked at the context of sexual assault, including issues of human trafficking, missing children and beggary as factors behind crimes.

It is set to recommend a comprehensive criminal law amendment Bill that defines sexual assault to address penetrative assault as well as non-penetrative sexual offences such as molestation, stalking and stripping. Marital rape is also likely to be recommended for inclusion in the sexual assault law for the first time. Currently, marital rape is legal.

The panel is also expected to seek repeal of Sections 354 and 509 of the IPC which contain archaic notions of outraging the modesty of women and recommend their replacement with a clear gradation of non-penetrative sexual offences along with punishments depending on the violation of women’s bodily integrity.

For the first time, there is a possibility of security forces being covered as a separate category in the section of sexual assault law dealing with aggravated sexual assault. Section 376 (2) of the Criminal Amendment Bill 2012 which the government introduced in Lok Sabha last December doesn’t cover security or armed forces as a category under aggravated sexual assault and mentions only police, public servants, remand home in charges and hospital managements. The Verma panel will likely seek inclusion of armed forces and recommend waivers of prosecution sanction if they are accused of this offence.

On punishment, the committee’s view remains to be seen considering majority petitions argued against death penalty and chemical castration and sought quick justice and imprisonment ranging from 10 years to the rest of life for the accused depending on the crime committed.

Women’s groups unanimously opposed lowering the juvenile age from 18 years at present and called for accountability of states and Centre on care, protection and rehabilitation of juvenile delinquents. They, however, demanded lowering the age of consent for sexual engagement from the current 18 to 16 years.

In another expected recommendation, the commission will set to ask the government to make sexual assault a gender-specific crime insofar as the perpetrator is concerned. The current government Bill defines sexual assault as a gender neutral crime (meaning women can also rape and men can be raped).

“We argued that sexual assault be made gender-specific insofar as perpetrators (males) are concerned and gender neutral insofar as victims are concerned. Among victims, women, transgenders and other sexual minorities must be mentioned. The commission heard us favourably and examined linkages between government current economic policies and rising crimes against women,” said Vrinda Grover, top Supreme Court lawyer.

Sweeping measures

• It will cover penetrative assault as well as non-penetrative sexual offences such as molestation, stalking and stripping
• Marital rape is also likely to be recommended for inclusion in the sexual assault law for the first time. Currently, marital rape is legal
• The panel is also likely to press for doing away with archaic terms like outraging the modesty of women and recommend their replacement with a clear gradation of non-penetrative sexual offences
• For the first time, there is a possibility of security forces being covered as a separate category in the section of sexual assault law

Related articles

• Women’s groups want marital rape punished (thehindu.com)

BY APARNA VISWANATHAN PUBLISHED IN THE HINDU

The government must allow the online filing of first information reports in rape cases as that alone will ensure mandatory and automatic registration of complaints

On January 18, 2013, Delhi police chief Neeraj Kumar announced that Zero First Information Reports (FIRs) may be registered on the basis of a woman’s statement at any police station irrespective of jurisdiction. This means women can file an FIR at any police station and the complaint is required to be registered on the basis of the woman’s complaint verbatim. Mr. Kumar stated: “The woman’s statement has to be taken as gospel truth and a probe needs to be initiated on its basis.”

Important step forward

At the same time, the Delhi police chief announced a series of other measures such as the recruitment of 418 women sub-inspectors and 2,088 women constables, deployment of PCR vans outside women’s colleges, the provision that women can call 100 to seek assistance to be dropped home at night by a PCR van, and 24-hour police cover for areas around entertainment hubs with heightened security between 8 pm and 1 am. While the foregoing measures must certainly be welcomed as an important step forward towards making the criminal justice system functional, it is surprising that e-governance has not been utilised by the Delhi police as an important solution in a country which is considered the world’s leading provider of IT enabled solutions.

E-governance is the application of information and communication technology to delivering government services, exchange of information and integration of various stand-alone systems and services between the government and citizens as well as back-office processes within the government. Through e-governance, government services can be provided to citizens in an efficient and transparent manner, which is of desperate need in India.

As shown by the introduction of the Zero FIR, the starting point towards improving criminal justice is the filing of the criminal complaint itself. It is well known that the filing of FIRs, particularly for cognisable offenses, is an extremely difficult exercise — more so for a rape victim who has to ceaselessly recount the horrific event. Police stations often refuse to register FIRs for cognisable complaints, and innumerable rapes around the country go unreported. The victims then are forced to file a private complaint in court under Section 156(3) of the Criminal Procedure Code (CrPC) seeking an order directing the police to register an FIR. The police chief’s announcement that the woman’s statement will be taken as the “gospel truth” is an important first step that will hopefully enable rape victims to register an FIR.

The police have often taken the view that, under Section 154 of the CrPC, complaints need to be investigated before the FIR is registered because the complaint could be a disguised civil or commercial dispute or a way of settling personal enmity. Complaints of criminal cheating and fraud are sometimes filed as a way of pressuring business associates to settle financial disputes or for personal grudges. However, this is highly unlikely to occur in the case of rape. In fact, there is no reason why all complaints for at least cognisable offences should not be registered as FIRs and then investigated.

While the Supreme Court has, in various judgments, taken contradictory views on the issue of whether the police are required to investigate a complaint before registering an FIR under Section 154 of the CrPC, it has repeatedly expressed its deep anguish over the failure of police to register FIRs, particularly in rape cases. Hopefully, the police will now register an FIR based on the woman’s statement as per the recently announced measures. However, the mandatory and automatic registration of FIRs can be ensured only through e-governance, that is, by providing for online registration of FIRs by citizens.

Tracking network

The online registration of FIRs was supposed to be implemented by 2013. On March 21, 2012, the then Union Home Minister, P. Chidambaram, stated in the Rajya Sabha that online registration of FIRs would be possible once the server and network connectivity was established by the end of 2012 or early 2013. However, the online filing of FIRs will be made possible only upon the implementation of the Crime and Criminal Tracking Network and Systems (CCTNS), an ambitious Rs. 2,000 crore project of the Home Ministry, aimed at increasing the efficiency and effectiveness of policing through e-governance by creating a state-of-the-art IT-enabled crime tracking system for investigation of crime and detection of criminals.

Under CCTNS, 14,000 police stations will be automated as well as 6,000 offices of higher police officials. The CCTNS is a platform for sharing real time information by law-enforcement agencies, which will improve identification of criminals and crime investigation. Funds in the amount of Rs. 418 crore have reportedly been released to the States/Union Territories and 4.54 lakh people have been trained. The CCTNS project was supposed to be completed in March 31, 2012. However, in June 2012, the Cabinet Committee on Economic Affairs (CCEA) extended the deadline to March 2015.

In November 2012, the Home Ministry began monitoring the status of the CCTNS project on a weekly basis and appointed 20 Joint Secretaries to monitor the progress of the project and ensure completion by March 2015. The delay in project implementation was reportedly due to the non-availability of common application software (CAS) and infrastructure problems. Since law and order is a State issue, issues of coordination between the States also contributed to the delay. However, it is unclear why the Indian government needs to implement a Rs.2,000 crore project before enabling online filing of FIRs. In view of the great national imperative in creating deterrence against rape, websites and e-filing mechanisms should be immediately created to permit e-filing of FIRs at least in rape cases.

The online filing of annual accounts and other documents was successfully implemented several years ago by the Ministry of Company Affairs. Various State governments have also provided for online filing of police complaints and online payment of traffic challans. The Himachal Pradesh Police have introduced an interactive portal called “Kanoon Vyavastha,” the first of its kind in the country, by which a police complaint can be filed online or by SMS. As per a report in the Financial Express, of 1,821 SMSs received, 22 FIRs were registered without the complainant having to visit the police station. Of these 22 FIRs, reportedly only one was related to a rape case. After the launch of SMS service in May 2010, 4,392 SMSs were received, of which 82 FIRs were registered. The complainant can check the status of the FIR online and post comments. The web portal is used for daily crime reporting, providing details of missing persons and vehicles and road accidents. Jalandhar reportedly has an online crime tip page where people can anonymously inform the police of a crime that has been committed. Similarly, Maharashtra has an e-complaint system for reporting minor crimes, that is, non-cognisable offences.

Simultaneously, with the introduction of Zero FIRs, online filing of FIRs at least in rape cases should immediately be implemented irrespective of the status of the CCTNS project. The introduction of e-FIRs will be an important signal to all criminals that rape will not go unpunished.

(Aparna Viswanathan is author of Cyber Law: Indian and International Perspectives (Lexis Nexis Butterworths Wadhwa 2012))

INDIRA JAISINGH IN THE TIMES OF INDIA

Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.

The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.

To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.

This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.

It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.

This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.

Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.

It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.

Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.

The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.

Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.

All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.

A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.

A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.

The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.

It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.

We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.

The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.

The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.

The writer is Additional Solicitor General of India

INDIRA JAISINGH IN THE TIMES OF INDIA

Remarks by Lord Justice Leveson: Thursday 29 November 2012

For the seventh time in less than 70 years, there is a new report, commissioned by the Government, dealing with concerns about the press. It was sparked by public revulsion about a single act – the hacking of the mobile phone of a murdered teenager. From that beginning, it has expanded to cover the culture, practices and ethics of the press and its conduct in relation to the public, the police and politicians.

 This Inquiry has been the most concentrated look at the press this country has ever seen. In nearly nine months of oral hearings, 337 witnesses gave evidence in person and the statements of nearly 300 others were read into the record. I am grateful to all who have contributed. The Report will now be published on the Inquiry website which also carries the statements, exhibits and both transcripts and video coverage of the evidence.

 For over 40 years, as a barrister and a judge, I have watched the press in action, day after day, in the courts in which I have practised. I know how vital the press is – all of it – as guardian of the interests of the public, as a critical witness to events, as the standard bearer for those who have no-one else to speak up for them. Nothing in the evidence I have heard or read has changed that view. The press, operating freely and in the public interest, is one of the true safeguards of our democracy. As a result, it holds a privileged and powerful place in our society.

But this power and influence carries with it responsibilities to the public interest in whose name it exercises these privileges. Unfortunately, as the evidence has shown beyond doubt, on too many occasions, those responsibilities (along with the Editors’ Code which the press wrote and promoted) have simply been ignored. This has damaged the public interest, caused real hardship and, also on occasion, wreaked havoc in the lives of innocent people.

 What the press do and say is no ordinary exercise of free speech. It operates very differently from blogs on the internet and other social media such as Twitter. Its impact is uniquely powerful. A free press in a democracy holds power to account. But, with a few honourable exceptions, the UK press has not performed that vital role in the case of its own power.

None of this, however, is to conclude that press freedom in Britain, hard won over 300 years ago, should be jeopardised. On the contrary, it should not. I remain firmly of the belief that the British press – I repeat, all of it, – serves the country very well for the vast majority of the time. There are truly countless examples of great journalism, great investigations and great campaigns. Not that it is necessary or appropriate for the press always to be pursuing serious stories for it to be working in the public interest. Some of its most important functions are to inform, educate and entertain and, when doing so, to be irreverent, unruly and opinionated.

But none of that means that the press is beyond challenge. I know of no organised profession, industry or trade in which the serious failings of the few are overlooked or ignored because of the good done by the many. Were it so in any other case, the press would be the very first to expose such practices.

The purpose of this Inquiry has been two fold. First, it has been to do just that – to expose precisely what has been happening. Secondly, it is to make recommendations for change. As to change, almost everyone accepts that the Press Complaints Commission has failed in the task, if indeed it ever saw itself as having such a task, of keeping the press to its responsibilities to the public generally and to the individuals unfairly damaged.

There must be change. But let me say this very clearly. Not a single witness proposed that either Government or politicians all of whom the press hold to account, should be involved in the regulation of the press. Neither would I make any such proposal.

 Let me deal very briefly with the idea that this Inquiry might not have been necessary if the criminal law had simply operated more effectively. There were errors in aspects of the way the phone hacking investigation was managed in 2006 and in relation to the failure to undertake later reviews, and there are some problems that need to be fixed with the criminal and civil laws and also in relation to data protection. In particular, exemplary damages should be available for all media torts. In the end, however, law enforcement can never be the whole answer. As we have seen, that is because the law-breaking in this area is typically hidden, with the victims generally unaware of what has happened. Even if it were possible – and it is certainly not desirable – putting a policeman in every newsroom is no sort of answer.

In any event, the powers of law enforcement are significantly limited because of the privileges that the law provides to the press, including for the protection of its sources. That is specifically in order that it can perform its role in the public interest. What is needed therefore is a genuinely independent and effective system of selfregulation of standards, with obligations to the public interest. At the very start of the Inquiry and throughout I have encouraged the industry to work together to find a mechanism for independent self-regulation that would work for them and would work for the public.

Lord Hunt of Wirral and Lord Black of Brentwood stepped forward to lead the effort. They put forward the idea of a model based on contractual obligations among press organisations. On Monday afternoon of this week, with the Report being printed, I received two separate submissions from within the press telling me that most of the industry was now prepared to sign self-regulation contracts.

The first submission recognises the possibility of improvements to the model proposed so far. The second expresses confidence that the model proposed by Lord Black and Lord Hunt addresses the criticisms made at the Inquiry. Unfortunately, however, although this model is an improvement on the PCC, in my view, it does not come close to delivering, in the words of the submission itself, “regulation that is itself, genuinely, free and independent both of the industry it regulates and of political control”. Any model with editors on the main Board is simply not independent of the industry to anything approaching the degree required to warrant public confidence. It is still the industry marking its own homework. Nor is the model proposed stable or robust for the longer-term future.

The press needs to establish a new regulatory body which is truly independent of industry leaders and of Government and politicians. It must promote high standards of journalism, and protect both the public interest and the rights and liberties of individuals. It should set and enforce standards, hear individual complaints against its members and provide a fair, quick and inexpensive arbitration service to deal with civil law claims.

The Chair and the other members of the body must be independent and appointed by a fair and open process. It must comprise a majority of members who are independent of the press. It should not include any serving editor or politician. That can be readily achieved by an appointments panel which could itself include a current editor but with a substantial majority demonstrably independent of the press and of politicians. In the Report, I explain who might be involved.

Although I make some recommendations in this area, it is absolutely not my role to seek to establish a new press standards code or to decide how an independent selfregulatory, body would go about its business. As to a standards code, I recommend the involvement of an industry committee (which could involve serving editors).

That committee would advise the regulatory body and there should be a process of public consultation. In my report, I also address the need for incentives to be put in place to encourage all in the industry to sign up to this new regulatory system. Guaranteed independence, long-term stability, and genuine benefits for the industry, cannot be realised without legislation. So much misleading speculation and misinformation has been spread about the prospect of new legislation that I need to make a few things very clear. I am proposing it only for the narrow purpose of recognising a new independent self-regulatory system. It is important to be clear what this legislation would not do; it would not establish a body to regulate the press; that is for the press itself to do.

So what would this legislation achieve? Three things. It would enshrine, for the first time, a legal duty on the Government to protect the freedom of the press. Secondly, it would provide an independent process to recognise the new self-regulatory body and thereby reassure the public of its independence and efficacy. Thirdly, it would provide new and tangible benefits for the press. As members of the body, newspapers could show that they act in good faith and have sought to comply with  standards based on the public interest. Decisions of the new recognised regulator could create precedents which could, in turn, help a court in civil actions. In addition, the existence of a formally recognised, free arbitration system is likely to provide powerful arguments as to costs should a claimant decide not to use that free system or, conversely, if a newspaper is not a member. In my view, the benefits of membership should be obvious to all.

This is not, and cannot reasonably or fairly be characterised as, statutory regulation of the press. I am proposing independent regulation of the press organised by the press itself with a statutory process to support press freedom, provide stability and guarantee for the public that this new body is independent and effective. I firmly believe that these recommendations for self-regulation are in the best interests of the public and the press; they have not been influenced by any political or other agenda but solely by what I believe is fair and right for everyone. What is more, given the public interest role of which the press is rightly proud, I do not think that either the victims I have heard from, or the public in general, would accept anything less.

Turning to the police, the relationship between police and public is vital to the essential requirements of policing by consent and the press have a very important part to play in its promotion. Although there has been a limit on how far it has been possible for the Inquiry to go because of the need not to prejudice any ongoing investigations, whatever Operation Elveden (concerning corrupt payments to officials) might reveal, I have not seen any evidence to suggest that corruption by the press is a widespread problem in relation to the police. However, while broadly endorsing the approach of recent reviews into police governance, I have identified a number of issues that I recommend should be addressed.

As for the press and politicians, the overwhelming evidence is that relations on a day-to-day basis are in robust good health and performing the vital public interest functions of a free press in a vigorous democracy; everyday interactions between journalists and politicians cause no concern. But senior politicians across the spectrum have accepted that in a number of respects the relationship between politics and the press has been ‘too close’. I agree.

What I am concerned about is a particular kind of lobbying, conducted out of the public eye, through the relationships of policy makers and those in the media who stand to gain or lose from the policy being considered. That gives rise to the understandable perception that the power of the press to affect political fortunes may be used to influence that policy. This, in turn, undermines public trust and confidence in decisions on media matters being taken genuinely in the public interest. This is a long-standing issue, and one which, over the years and across the political spectrum, has repeatedly resulted in opportunities being missed to respond appropriately to legitimate public concern about press behaviour.

The press is, of course, entitled to lobby in its own interests, whether editorially or through the senior political access it enjoys. It is, however, the responsibility of the politicians to ensure that the decisions that are taken are seen to be based on the public interest as a whole. This means the extent to which they are lobbied by the press should be open and transparent; and that the public should therefore have a basic understanding of the process. In this limited area, I have recommended that consideration should be given to a number of steps to create greater transparency about these influential relationships at the top of politics and the media and so address the issue of public perception and hence trust and confidence. A good start would be for those steps towards greater transparency to be taken in relation to press lobbying about this Report.

Similar considerations apply to the role of Ministers when taking decisions about the public interest in relation to media ownership. I believe that democratically accountable Ministers are the right people to make these decisions. However, I have made recommendations as to how the process can be made much more transparent to ensure that in future there should be no risk even of the perception of bias. It is essential that the UK retains a plural media with a genuine diversity of ownership, approach and perspective. In my opinion, the competition authorities should have the means to keep levels of plurality under review and be equipped with a full range of remedies to deal with concerns.

I must now place on record my thanks to all those who participated in the Inquiry.These are the assessors who have advised in areas of their expertise and who were selected by the Government with the support of the Leader of the Opposition, in the Prime Minister’s words “for their complete independence from all interested parties”; Robert Jay and counsel, for collating and presenting such a massive volume of evidence so efficiently; everyone in the Inquiry team who has worked so hard to achieve so much in such limited time; the core participants and their lawyers; and, most of all, the public who have provided evidence, views and submissions.

As I said at the beginning, this is the seventh time in less than 70 years that these issues have been addressed. No-one can think it makes any sense to contemplate an eighth. I hope that my recommendations will be treated in exactly the same cross party spirit which led to the setting up of the Inquiry in the first place and will lead to a cross party response. I believe that the Report can and must speak for itself; to that end, I will be making no further comment. Nobody will be speaking for me about its contents either now or in the future. The ball moves back into the politicians’ court: they must now decide who guards the guardians.

The Report has been published at http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780.asp

The Executive Summary has been published at http://www.official-documents.gov.uk/document/hc1213/hc07/0779/0779.asp

A copy of Lord Justice Leveson’s statement has been published at Remarks by Lord Justice Leveson – 29 November 2012 (pdf, 36KB)

Justice Markandey Katju  – ARTICLE PUBLISHED IN THE HINDU

The Leveson report on the British press should jolt the Indian media into acting against ills such as paid news, and focus on being an agent of progressive social change

After an inquiry lasting a year, Lord Justice Leveson has delivered a damning verdict on the decades of “outrageous” behaviour by the media. If anything, this verdict would apply in even greater force to a large section (not all) of the Indian media which has since long been shamelessly indulging in malpractices — paid news, the Radia tapes, and even blackmail and extortion. The Zee exposure is only the tip of an iceberg. Lord Justice Leveson in his report has said that malpractices in the media are not aberrations but common practices. This comment applies equally to a large section of the Indian media, though it must also be said that there are many upright and excellent journalists in India.

Lord Justice Leveson has said that: a section of the media acted as if its own ethical code simply did not exist; it “wreaked havoc with the lives of innocent people”; there has been “reckless disregard for accuracy.”

Paid news

Everyone knows that paid news is rampant in India, but when the two-member committee (of Paranjoy Guha Thakurta and K. Sreenivas Reddy) set up by the Press Council submitted a damning 72-page report, it was shamelessly sought to be suppressed at the instance of some members of the Press Council (before I became its Chairman). The first thing I did on becoming Chairman was to place the report on the Press Council’s website.

Madhu Kishwar, a senior journalist, said on Rajya Sabha TV that many media people can be bribed and manipulated. The huge salaries which many top media people get (some are said to get packages worth several crores annually, often linked with TRP ratings) enable such media people to lead fancy lifestyles with huge cars, houses and bank balances, thereby making many of them (not all) docile hirelings of their corporate masters.

Need for regulator

Lord Justice Leveson has called for the setting up of an independent statutory regulator of the media, which is precisely what I have been pleading for since long. However I have clarified that:

1. I want regulation, not control, of the media, the difference between the two being that whereas in control there is no freedom, in regulation there is freedom but subject to reasonable restrictions in the public interest.

2. This regulation should not be by the government or any individual but by an independent statutory authority (which can be called the Media Council) and

3. Most of the members of the proposed Media Council (which should have representatives from the broadcast media also on it) should be mediapersons, not appointed by the government but elected by media organisations.

This media council should have punitive powers including the power to suspend licences and impose fines, but such punishment should be given by the majority decision of the Media Council, and not by the chairman alone. This is really a form of self-regulation and judgment by one’s peers (as is done by the Bar Council).

Some mediapersons have quoted Jefferson who said that if he had to choose between a government without a free press or a free press without a government, he would choose the latter. While I have great respect for Jefferson, I regret I cannot accept this statement, for two reasons. First, if there is no government there would be anarchy, and a free press cannot exist in an anarchy.

Second, in a democracy, the media must help people in their struggle for a better life. Therefore, freedom of the media by itself has no value. It has value if it helps people secure better lives. If the media uses its freedom to perpetuate poverty and other social evils like casteism, communalism and superstitions by propagating backward ideas, should we permit such freedom? Certainly not. Therefore, freedom of the media is a good thing only if it helps to raise the standard of living of the masses, and this it can do by spreading rational and scientific ideas and combating backward and feudal ideas like casteism and communalism.

Voice of the future

Historically, the media arose in western Europe as an organ of the people against feudal oppression in the 17th and 18th centuries. At that time, all the organs of power were in the hands of feudal authorities (kings, aristocrats, etc). Hence the people had to create new organs which could represent their interests. The media (which was then only the print media) was a powerful organ created by the people. In Europe and America it represented the voice of the future, in contrast to the feudal organs which wanted to preserve the status quo. Everyone knows of the great role played by Voltaire, Rousseau, Thomas Paine, John Wilkes and Junius who fought against feudal oppression, and helped greatly in the transformation of feudal Europe to modern Europe.

In my opinion, the Indian media should also play such a role. Today the Indian people are suffering terribly from massive poverty, unemployment, skyrocketing prices, an absence of health care and good education for the masses. The Indian media should help our country abolish these great evils, the way the European media did. Only then will it win the respect of the people.

Some people have misunderstood me and thought that I wish to gag or muzzle the media at the behest of the government. The truth is that I have always been fighting for media freedom, as my track record shows. However, I have also been saying that the media must act responsibly, particularly in a poor country like India.

No freedom can be absolute. Man is a social being, as Aristotle said. Hence freedom cannot go to the extent of damaging society, because in turn, we will be damaging ourselves.

(Justice Markandey Katju is Chairman, Press Council of India.)

ARTICLE PUBLISHED IN THE HINDU

Supreme Court of India

MANISH CHIBBER IN THE INDIAN EXPRESS

Former chief justice of India J S Verma has termed the Supreme Court’s judgment in the Vodafone tax case as one of its three judgments “which are best forgotten or allowed to pass”.

Verma had first criticised the judgment on Saturday when he spoke at the launch of the book My Experience with the office of Additional Solicitor General of India by former ASG Bishwajit Bhattacharyya. On Thursday, speaking to The Indian Express at his Noida home, the jurist spelt out why he felt the Vodafone judgment delivered on January 20 by a bench headed by then CJI S H Kapadia deserved to be clubbed with the controversial judgments of the apex court in the habeas corpus case during the Emergency — often referred to as the lowest point in the history of Indian judiciary — and the JMM bribery case.

“At the book launch, I said I agreed with the analysis of Bishwajit Bhattacharyya as to why the judgment was incorrect on merits. But, I have some other reasons why I don’t think this judgment to be correct or appropriate in law,” Verma said. “The first reason is that, in my understanding, the three-judge judgment in Vodafone bypasses a five-judge constitution bench judgment in the McDowell matter in 1985. The McDowell judgment in substance said that in this context what you have to see is the substance of the transaction to determine the tax liability and not merely the form of the transaction. But, as far as I understand the Vodafone judgment, the court has said the opposite. They (judges) have gone by the form and not the substance. According to me that is not the correct position,” he said.

The Supreme Court, in its landmark judgment in the McDowell case, had said that behind every tax law there was “as much moral sanction as behind any other welfare legislation” and that “it is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation”.

Asked about the other reasons why he was not convinced with the Vodafone judgment, Verma said, “The moral foundation is as much available to tax laws as it is to welfare legislation. It is therefore necessary that while interpreting taxation laws you have to bear that fact in mind. Also, see the implication. While the law permits legitimate avoidance of tax by tax planning, illegitimate tax avoidance by adopting a subterfuge is not permissible. This should be shunned by the courts. This is something that has been settled by most cases. McDowell settled this and is the law of the land.”

He, however, clarified that he was not suggesting that the courts couldn’t take a view different from settled law. “But, the different view can’t be treated as law if it is taken by a three-judge bench. The bench should have referred it to a larger bench. I don’t think the CJI-led bench could have bypassed or distinguished from McDowell,” Verma added.

“However, there is a much bigger reason. Judges need to be committed to constitutional philosophy and not the philosophy of the ruling party. The constitutional philosophy in this case as laid out in Articles 38 and 39. The effect of benefiting a corporate is to cast a higher tax burden on the common man and when you uphold an illegal tax avoidance, then you cast a higher tax burden on the honest tax payer. According to me the Vodafone judgment has all these implications,” the former chief justice said.

“That is why, unfortunately and sadly, Vodafone completes the trinity of infamous judgments of the SC, which, the sooner they are forgotten or overcome, the better it would be.”