Tag Archives | Supreme Court

Interpreting Section 124 (a) in the context of JNU students’ protest

The history of prosecution success of sedition law in India has been rather mixed and its application in the case of JNU students too raises uncomfortable questions

The arrest of seven students of JNU and its president on February 10 for allegedly shouting anti-India slogans under section 124 (a) has sparked a debate whether this section is needed in a modern democratic society. The constitution of India does not define the word sedition.  Section 124 (a) of the Indian Penal Code(IPC) defines the defines the offence of ‘Sedition’ as below:

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

The sedition law is a colonial hangover (like many other archaic laws). Interestingly, it is linked to the Wahhabi movement in India. Although the IPC was brought into force in 1860 (after the bloody 1857 revolt or the first war of independence), this section was introduced only in 1870. Reason being that our colonial masters were drawing their lessons after fighting the Wahhabi rebels. The movement was ruthlessly put down by the then British government.

During the freedom struggle of India, the British Raj used this law against many freedom fighters, notable among them being Annie Besant, Bal Gangadhar Tilak, and Mahatma Gandhi. This in no way condones the allegedly anti-national slogans raised by the JNU students, one of them being  desh ki barbadi (destruction of the country) and if proven, action needs to be taken.  At the time of writing, the case is still under investigation by the Delhi Police.

The successful prosecution under this section has been very patchy in independent India. Some of the personalities against whom this section was applied but could not be prosecuted are Maneka Gandhi, Arundhati Roy, cartoonist Aseem Trivedi, and Binayak Sen. In a well known case, 67 Kashmiri students were booked under this act by the UP government in 2014 when they cheered for Pakistan in an Asia Cup match against India. Again, this could be applied subjectively. If in a match between India vs Australia, you cheer for Australia, it may not be termed sedition because the relations between the two countries are not by any stretch of imagination, inimical. The charges were dropped later on due to intervention by Omar Abdullah, the then Chief Minister of Kashmir.

The Supreme Court has repeatedly cautioned that even words indicating disaffection against the state will not constitute the offence, unless there is a call for violence or a pernicious tendency to create public disorder. In this specific case, reportedly the JNU students union had even dissociated itself from the views of the group of students who had organised the ill conceived anniversary of Afzal Guru’s hanging.

Even other political parties have resorted to use this section selectively at various times. Taking a non-partisan approach, the time has come to genuinely debate whether we need this, almost 70 years after independence.

 

Guru Aiyar is a Research Scholar with Takshashila Institution and tweets @guruaiyar.

Featured Image: Really old law books by umjanedoan, licensed from creativecommons.org

 

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Why should Section 377 go?

Repealing of Section 377 by the Supreme Court will mean victory for equality and dignity of the individual

A strange kind of football was being played between the Indian legislature and judiciary on Section 377 of Indian Penal Code(IPC). Section 377 outlaws relationship between same sex couples and carries a stiff penalty of imprisonment up to 10 years. Enacted by our colonial masters in 1862, it smacks of medieval prejudice which by any stretch or argument, is draconian in the present day context. The Supreme Court in December 2013 reversed a Delhi High Court verdict of 2009 decriminalising gay sex. The central government officially stated that it cannot intervene in this matter as it is sub-judice. An attempt by Congress MP Shashi Tharoor, to introduce the Bill in the parliament during the winter session in 2015 was scuttled without even being debated.

The Supreme Court on February 2, 2016 referred a batch of curative petitions against Section 377 to a five-judge Constitution Bench for in-depth hearing.  In legal terms, a curative petition is the last resort for redressal of grievances. While referring the matter to a five-judge bench, the Chief Justice noted that the case involves questions with constitutional dimensions. There is a strong lawful argument to strike down Section 377. That right to privacy is a fundamental right. And a person’s sexuality is the most precious and private of rights.

In June 2015, the US Supreme Court ruled that the gay community was entitled to due process and equal protection in the matter of marriage thus legalising gay marriages. In fact, this was a hard won battle by the Lesbian, Gay, Bisexual, and Transgender (LGBT) activists. There are 21 countries in the world where same sex marriages are legal. England repealed this law in 2013. According to Lawyers Collective, Section 377 lacks precise definition. It has come to include all manner of “immoral” acts other than acts that are considered natural. This section violates articles 14, 15, 19, and 21 of the Indian constitution which guarantee equality, freedom of expression and personal liberty to all its citizens.

Although chances for success in a curative petition are very slim, this is the time for a serious introspection and honest evaluation by the apex court. Where does the honourable court stand on the issue of homosexuality?  This is not a matter of judicial overreach. All that the Supreme Court should do is to enforce the fundamental rights of the citizens of India.  For a liberal democracy, to criminalise sexual activity between consenting adults of the same sex is plain repressive which places it in the same league as some Middle Eastern countries.

 

Guru Aiyar is a research scholar at Takshashila Institution and tweets @guruaiyar

Featured Image: Law and Order by Paige, licensed from creativecommons.org

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The curious case of Sikhs for minority quota in Punjab

The judgement of Supreme Court in February 2016 will have far reaching consequences as minorities are influential in shaping policy in a fractured society

According to section 9(1) of Minorities Act of 1992, Sikhs are one of the minority communities in India apart from Muslims, Christians, Buddhists and Zoroastrians(Parsis). In addition, Jains were declared a minority community by a notification issued by the National Commission of Minorities(NCM) in January 2014. As per the data of census 2001, these six minorities constitute 18.8% of country’s population. In 2007, the Shiromani Gurudwara Prabandhak Committee(SGPC) filed a case in Punjab and Haryana High Court asking for minority status for Sikhs which was rejected. This judgement of the High Court was stayed by the Supreme Court when challenged by the SGPC. The case will come up for hearing in February 2016 before a five-judge constitutional bench headed by the Chief Justice of India, Mr. Justice T.S. Thakur. It is interesting to note that SGPC has a major role in shaping the politics of Punjab where religion and politics are inextricably linked. The state is headed for assembly elections in January 2017.

The High Court had rejected minority status to Sikhs in Punjab on the grounds that the community was numerically strong. The Punjab government had also not produced no material to show that Sikhs “apprehended deprivation of their religious, cultural or educational rights in the state from any other community which may be in majority and may gain political power in the elections.” The point of contention in this case is a notification by the state government of Punjab. The notification issued in 2001 reserved 50 percent of seats for Sikh students in the educational institutions run by the SGPC.

The Supreme Court in 2002 had ruled that while determining the minority status for reservation in educational institutions, the populations of the minority in that particular state would be the basis. It won’t be minority status granted in the country through the constitution. This case is known as the historic T.M.A. Pai Foundation versus state of Karnataka. The Pai Foundation judgement meant that the state cannot impose its reservation policy on minority and non-minority unaided private colleges including professional colleges. This judgement raised more questions than it answered.

The SGPC on its part has based its arguments on the  fact that educational institutions run by SGPC grant admissions to Sikh students from the other states where they are a minority. The Chief Justice pointedly asked:”Can Muslims who are in majority in Kashmir, still be treated as a minority? Can Sikhs be a minority in Punjab? Can Christians be minority in Meghalaya?” The judgement in this case will have a great bearing on the admissions process of professional colleges — both private as well as state run. Not only that — a community being declared a minority in its own parent state seems rather paradoxical.

 

Guru Aiyar is a research scholar at Takshashila Institution and tweets @guruaiyar.

Featured image: Sikhs, Amritsar(at Harmindar Sahib) by Nevil Zaveri, licensed from creativecommons.org

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A different kind of legal insanity

Supreme Court orders have not successfully deterred lower courts from sending rape cases for mediation or settlement. Perhaps it’s time to try something new

The definition of insanity is doing the same thing over and over again, but expecting different results

On July 11th, the Madras High Court overturned its controversial order to send a convicted rapist to mediate with his victim. The original order had been widely condemned by the legal community, political commentators and citizens on social media. It was only after the Supreme Court had decreed that the settlement of a rape case would be a “spectacular error” in a separate matter that the Madras High Court recalled its order. It is extremely disturbing that the Madras High Court required an extremely publicised Supreme Court decision in order to reverse its position given that the Supreme Court had already declared rape to be a non-compoundable offence with no possibility for compromise in a previous case. In that case the Supreme Court had also observed how lower courts have repeatedly defied Supreme Court decisions in taking a soft approach to sentencing in rape cases. Given these repeated transgressions by courts it is time that another measure is used to bring them into line. This measure could also be used to address the fact that many rape victims also face pressure to marry their rapists outside of court halls.

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In 2013, a case reached a 3 judge bench of the Supreme Court where two men convicted of gang rape requested that their sentence be reduced below the minimum of 10 years rigorous imprisonment. This was the only issue to be decided by the Court and given that lower courts had repeatedly transgressed in sentencing rape cases, it took efforts to set out its stance on the handling of rape cases. It examined the provisions of the IPC and quoted extensively from its previous judgments. It held that neither the fact that the rape had occurred a while ago and the victim was now happily married nor the fact that the victim had agreed to a compromise would be sufficient to commute the sentence. Commenting that this was “yet another opportunity” to inform subordinate courts on the correct handling of rape cases, the court laid down the following position on the compromising of rape offences:

Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim[s], it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC.

However, despite this clear language and reasoning the Madras High Court persistently pursued compromises as an option in rape cases, even where the victim was a minor. In his order, Justice Devadass proudly boasted of the “happy conclusion” of another case involving the rape of a minor that he had sent for mediation (the victim married her rapist). He went on to declare that in “the facts and circumstances, the case before us is a fit case for attempting compromise between the parties. ‘Mediation’ mode is best suited to them.” The order was littered with statements that seemed to re-enforce many patriarchal norms tying the dignity of women to their marital status and thus attracted the attention of news outlets across the country.

As a consequence, the Supreme Court took the first opportunity it had to reiterate its stance on the settlement of rape cases and used some of its strongest language yet. Also referring to its earlier 2013 judgment, the Court stated that:

The conception of compromise, under no circumstances, can be thought of in a case of rape or attempt to rape…Any kind of liberal approach or a thought of mediation in this regard is thoroughly and completely sans legal permissibility…We say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error

While it is possible that such clear and forceful language might finally dissuade courts from pursuing mediation in rape cases, the precedent is not promising. Even if it is successful, many parts of society still feel that settlement or marriage is a suitable solution to save the ‘dignity’ of the victim (even though this would place the victim into a relationship where the perpetrator could repeatedly legally rape her with impunity). Such views have been expressed by government authorities like the Chairpersons of State Commissions for Women or Panchayats.

Perhaps the very act of pressuring a rape victim to marry or compromise with the perpetrator(s) should be made a criminal offence in itself. This would help protect rape victims, who have already suffered enough trauma, from further harassment from society. Given that there would be many similarities to dowry harassment cases, the extensive case law for that offence could prove beneficial. Including a provision that a conviction would qualify as one of “moral turpitude” would also restrain government officials fearful of disqualification or removal. Finally, such an offence would also send the clearest signal yet to courts; a judge would be far more unlikely to send rape cases for mediation or marriage if it constituted a criminal act and counted as grounds for disqualification.

Madhav Chandavarkar is a Research Analyst at the Takshashila Institution. His Twitter handle is @MadChaP88

Image Source: Ramesh Lalwani, Flickr

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A Socialist Justification for Market Pricing

As a socialist, welfare State, India needs to obtain the best price for distributing public property like roads

 

Car Parking

The average Indian is extremely reluctant to pay for parking. He will prefer parking for free on public roads rather than pay for a spot in a parking lot or mall, even if this involves the inconvenience of parking much further away, and navigating poorly lit and constructed pavements. It is a failure of the State that they are allowed to do this. Roads are public property or part of the public wealth and as such, are meant for the use and enjoyment of all, not just those who can afford their own private transport. There are many reasons to levy a fee on parking – as is the practice in many developed countries – some economic and others moral. While the one with the most popular appeal might be to reduce congestion on roads, the most important is that it is the constitutionally mandated duty of the State to do so. Article 39 of the Constitution of India (found in Part IV: Directive Principles of State Policy) declares that the State shall direct its policy towards securing:

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

 The current free parking system clearly violates these two provisions as the failure to distribute the material resource (roads) for the common good has resulted in the concentration of wealth (with private car owners) to the common detriment (traffic congestion). However, Article 37 also states that even though the Directive Principles are “fundamental to governance” and are the “duty of the State to apply”, they are not enforceable by courts. But this issue has been circumnavigated by the Courts in cases questioning the validity of public tenders for material resources.

In Ram And Shyam Company vs State Of Haryana And Ors, the Supreme Court held that because India is empowered to be a “Sovereign Socialist Secular Democratic Republic” by the Constitution, the property of the State is “socialist property” or community property and that every citizen has a vital interest in its effective use and legitimate disposal. The Court clearly differentiates between private property and public property and holds that India’s status as a welfare State means that the latter must be dealt with differently for the following reasons:

Public Property is held in trust

Owners of private property have complete freedom in how to dispose their property as long as they remain within the law. They may gift the property or sell it at a fraction of its full value if they so wish to. But the Court held that a “welfare State as the owner of the public property has no such freedom while disposing of the public property. A welfare State exists for the largest good of the largest number, more so when it proclaims to be a socialist State dedicated to the eradication of poverty…. public property has to be dealt with for public purpose and in public interest” It went on to argue that because the State is merely holding public property in trust for the benefit of the community it must ensure that its disposal is free of any favouritism or untowardness. The Court quoted from one of its previous cases, Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir and Anr where it had held that “the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest.”

There are already a number of judgments limiting the arbitrariness of government actions. When they are read together with the statements delivered by the Supreme Court in the Ram and Shyam case, they essentially make the provisions of Article 39 enforceable in Indian Courts. While the Court may have substituted “material resources” and “common good/detriment” with “public property” and “public interest”, the intention remains unchanged; the State must act for the largest good of the largest number, and must do so in a fair manner.

Disposal of Public Property should be done at Market Price

The Court also interpreted the phrase “public purpose” as a validation of market pricing for public property. It held that if public property was disposed of at the highest possible price, the State would be “able to expand its beneficial activities by the availability of larger funds”. As such, its intention must always be “to obtain the best available price while disposing of its property.” At this point, readers will probably be wondering how this reconciles with the Indian government’s perennial preference for subsidies as a welfare mechanism. The Court did, in fact, take this into account and held that “socialist property may be disposed at a price lower than the market price or even for a token price to achieve some defined constitutionally recognised public purpose, one such being to achieve the goals set out in Part IV of the Constitution.” But even this limitation has the following proviso: “where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy”

It has already been established that the “constitutionally recognised purpose” under the Directive Principles, if anything, requires that parking on public property should be charged at the market price. The current framework allows the rich to enjoy public wealth at the expense of those less privileged. Even a relatively small parking charge would go a long way in rectifying this situation. Take Bangalore for example, instituting a simple parking fee of Rs. 7 per hour could yield as much as Rs. 4 lakh per hour for the State exchequer. Such revenue would help finance urban infrastructure projects and result in immediate benefits for payees of the fee.

As India continues to grow and more people migrate to cities, it is imperative that the government gets its act together and charge urban space at a premium. A fear of the negative repercussions from the rich and privileged is insufficient reason for the State to shy away from instituting parking fees. The Constitution requires it, the Courts expect it and the people need it; the onus of establishing is now on the government.

Madhav Chandavarkar is a Research Associate with Takshashila Institution and can be found on Twitter on his handle @MadChap88.

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Fast track courts

Fast track courts are seen to be a new dawn in the over burdened judicial system proposing not only justice but timely so.

“Fast track courts” was one of the most influential means of judicial reforms. Over 1700 special courts were established in India exercising on the principle of “justice delayed is justice denied”. The Ministry of Finance sanctioned an amount of Rs. 502.90cr under Article 275 as “special problem and upgradation grant” for judicial administration. These courts are expected to clear the excessive strength of pending cases in the subordinate courts. The previous law minister, K Sibal said necessary steps should be taken to establish a suitable number of Fast Track Courts to especially hear “offences against women, children, differently abled people, senior citizens and marginalised sections” of society. Interestingly these courts are also expected to be cost effective as in the initial months, they will handle petty crimes that have been backlogged and held offenders in jail for longer than required, and this would in turn relieve jails off some of the burdens of over-populating. The fast track courts can thus be seen as an act in furtherance to Art 21 which provides for both right to life and speedy trials.

The scheme says that there must be at least 5 fast track courts in every district. Beyond that the distribution is done on the basis of amount of pending cases. These courts will take state their working first with those cases that have been hung along for 2yrs or more.

“An effective justice delivery system requires that justice should not only be delivered on time, but should also be easily accessible to people, particularly people from vulnerable sections of society,” said President Pranab Mukherjee while delivering a lecture in seminar organised by the Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh and Sikkim.

For quick and efficient decision making the sub-ordinate courts are being integrated with technological infrastructure. By the end of March 2014, 12000 out of the total 22000 lower and district courts were sanctioned to be computerised.

The Supreme Court in “All India Judges Association vs Union of India & Ors” stated that, “An independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges is not appointed, justice would not be available to the people, thereby undermining the basic structure.” The court explained importance of fast track courts saying that “to create a court is to appoint a judge”. The appointment of judges in these courts will be done through Chief Justices, further amongst the retired session and additional session court judges; few would be chosen to be ad-hoc judges by the High Court. The credential of judges was also stressed upon by the court. It was observed that a good judge is not when who is good but who’s also thought to be good. Simply stating the trust of public on judiciary not just lies in their trust over the judges. The substantiate this, the Court in its decision in Brij Mohan Lal v Union of India pronounced that no person who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. The Court has been monitoring the functioning of fast track courts since this judgement in May, 2002.

The Law Minister and the judicial system seemed to have a strong trust in this scheme and hoped that it would help in eliminating the back-log of cases and make justice readily available to all those who seek it. Unfortunately these courts have failed to live up to their expectations. The 2012 Delhi gang rape case which spurred the need of quick delivery of justice, took 7 months to be resolved. Now, although the judicial system as a whole considers this to be a good start, the hopes of public were much higher. Further despite the Supreme Court direction for setting aside 10 percent of existing courts as additional fast-track courts, no efforts were made in furtherance to it. Hence the Supreme Court upheld the government’s policy to stop funding fast-track courts, which were created a decade ago to speed up trial in pending cases but have failed to deliver.

Although contrasting views on its success, fast track courts are seen to be a new dawn in the over burdened judicial system proposing not only justice but timely so.

Ruchita Sharma is an intern at the Takshashila Institution.

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