The three member panel comprising two retired HC judges Justices S N Sahai and P K Sareen, was understood to have stated in no uncertain terms that the inflammatory speeches made by Varun were not enough to attract the deterrent provisions of the NSA and the action takes was disproportionate to the nature of the alleged crime committed by Varun Gandhi.

But what exactly is this Advisory Board? Who constitutes it ?

Under the National Security Act, Sections 9, 10 and 11 govern the formation of the Advisory Board. Once a person is booked under the NSA, the appropriate government forms the Advisory Board and transfers the case to it. The main function of the Board is to look into the alleged acts and opine if there was sufficient cause for the person to be detained and booked under the NSA. If the Advisory Board opines that there wasn’t any sufficient cause for the detention of such person, the Appropriate government must revoke the order of detention.

The National Security Act governs the arrest and detention of persons acting in any manner prejudicial to the defence of India, relations of India with foreign powers, or the security of India.In Kartar Singh v. State of Punjab, the phrase ‘defence of India’ was construed to mean not only external sovereignty but also internal sovereignty. This, added to the phrase ‘security of India’ might have seemed appropriate to book Varun Gandhi to say that his hate speech might have instigated a riot or harmed the security of the state. The hate speech of Varun can be viewed below,

Well, he might want to cut the hands of people from another religion, But surely Varun Gandhi has had the laugh now. The question remained as to whether this speech was sufficient to harm the security of the state or ‘defence of India’. The Advisory Board found otherwise and thus the booking against him under the Act has been revoked against him. He may however, still be booked under the Indian Penal Code for incitement to violence and religious hatred. 

Readers might also want to read earlier news items and posts on this here;

- Varun Gandhi’s Hate Speech and the Law 

- Frame by Frame

- V is for Varun Gandhi…

- Beyond the Law 

In a gist, Vinay argues that while most legal commentators view individual rights as being the core of the Constitution, group identities as mere political concessions, Mayawati subscribes to the inverse idea — of the Constitution being a power-sharing agreement between groups. He also adds that in Mayawati’s view, the provisions for weaker sections were the result of a political compromise.

Perhaps the only politician who is so vocal about the constitution during the times of elections has been Mayawati and we must give the devil her due for that. She also has raised some serious questions that Vinay brings forth but doesn’t go further into. For instance, would we have specific provisions for the minorities if there hadn’t been a political compromise as he puts it ?

Most of the provisions today in the Constitution talk of group rights and identities within the paradigm of individual rights; Articles 15, 16 (reservations), prohibition of untouchability (Article 17), rights to administer minority institutions (Article 30) etc…. They make you think as to whether they would’ve existed even if there wasn’t an Ambedkar in the 1950s being a part of drafting the Constitution. I wasn’t alive back in the 1950’s but the recent examples of South Africa and its struggle for the inclusion for group rights makes me understand that it surely wasn’t an easy thing to attain and incorporate. Readers may read Barbara Oomen’s article here to get an idea of the same.

In the Constitution, we do talk of the individuality of rights. That part III incorporates the civil and political rights that are primarily individual in nature and part IV is to have social and economic rights that are group rights. But having a lot of these group rights in part III for the benefit of minorities is not such a bad thing either. India and now South Africa mark a shift in this traditionalist thinking and perhaps maybe for the better. If the Constitution is a power sharing agreement between groups, then the rights are surely the result of a political compromise. It took 300 odd people sitting for more than 2 years to debate and frame our constitution, in exchange for the discrimination that the dalits had faced and their rights (may be not for a separate state as mayawati argues though) some provisions in Part III may be considered as a compromise to them.

To understand, let’s take the case of Germany and LGT Bank of Liechtenstein. In January 2006, the German Government offered 5 million Euros to a bank officer of LGT bank asking him to give out confidential data of the clients and accounts of LGT bank. After a successful transaction in this regard, the German Government then went on to catch of the tax evasionists responsible and started prosecuting them. The amount of fraud is said to have exceeded 5 billion Euros now.
In its aftermath, the bank officer has been offered asylum in Germany and the German Government is now putting pressure over the European Union and the OECD to take measures into compelling these banks to be more transparent. In times of recession, this may be fruitful, but nevertheless, none of these banks can be compelled to give up the money that they own. (See timeline and EU Actions here)

Coming back to India, if we are to create a parallel to the German situation, the following issues would arise;

- Can the Indian Government pay somebody to do an illegal act in another country ?
- Going further, can the Court issue a writ of Mandamus to ask the Government to do such an illegal act?
- Even if the above can take place, there is no way of recovering the money but only to use the data to prosecute those for tax evasion. Neither the executive or the judiciary can do otherwise.

While one possible solution could be that while prosecuting these tax evasionists/ those holding up the money in these accounts, we offer them an immunity as an incentive if they get back the money; this could possibly lead to litigation and a replay of the Bearer Bonds case (RK Garg v. Union of India , 1979 SC). In the sense that, Indians charged for evasion in India would allege that this is arbitrary, unfair and against the mandate of Article 14 and is creating a difference between those stashing money abroad and evading income tax and those being prosecuting for evading income tax in India.
This is a complicated issue and I don’t think the Court’s can and should interfere. In the debates conducted, the speakers did come together on the fact that the Constitution does authorize the Court to interfere and ‘make law’ but they still agreed that it must keep out of policy matters and things it expressly cannot do and implement. It would then be interesting to see the way the Court handles this PIL.

Part I of the 1st Socio- Legal Debate is now online (view here). (The remaining here) The above video covers just the introduction to the debates. The rest is in line. The propositions were;

Proposition 1

Mathew J. in Keshavananda Bharti v. State of Kerala quoted Lord Reid to say,

“.. there was a time when it was almost indecent to suggest that judges make law- they only declare it. But we do not believe in fairly tales anymore and the function of this Court is not only to declare but also to make law that is binding on all the Courts of this Country”

¬The following are to be addressed in the proposition;

1) In an era of judicial lawmaking, should the judiciary still/still not be a State under Article 12 of the Constitution ?
2) Does the Constitution empower the judiciary with the power of law-making?
3)Whether the function of the Supreme Court under Article 141 is Constitutive or Declaratory in nature ?
4) Judicial activism v. judicial restraint.

Proposition 2

“To treat constitutional law same as the Constitution would then mean to submit to government by judiciary which is surely not intended in any democratic nation. Such would be utterly inconsistent with the very idea of rule of law.”

The above is Abhraham Lincoln’s criticism of the US Supreme Court decision of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856). Chandrachud J. in In re Special Court’s Bill termed this decision as the ‘great usurpation of power’ and cautioned the Court.

The following issues are to be addressed in this propostion;

1) What role does the Basic Structure doctrine have in defining the contours of judicial supremacy in India?
2) The legitimacy of the Court as a undemocratic/unelected body making the law.
3) The legitimacy of judicial decisions when the Court introduces/ ‘reads in’ a concept not existent in the Constitution, i.e. ‘due process of law’ in Article 21 despite the framers specifically rejecting this concept.
3) Ancillary issues such as the power of contempt, the Court appointing its own judges, interfering with the working of the parliament/ assemblies etc…

Part II here

It took over three months to materialize, but its finally here, and with a bang. The first in the Socio-legal Debate series was held at the M.K. Nambyar SAARCLaw Centre in NALSAR. The theme – ‘Role of the Supreme Court in Indian Governance’ – was extensively deliberated and argued upon by three eminent members of the academia and the Bar:

1. Mr. Shyam Divan, Senior Advocate, Supreme Court of India

2. Mr. Raju Ramachandran, Senior Advocate, Supreme Court of India

3. Mr. Sudhir Krishnaswamy, Professor of Law, NUJS – Kolkata.

The Debate was held over two sessions in the day, with the speakers discussing two propositions closely related to the theme. The event, we are proud to say, went down very well with students and faculty in NALSAR and the response was extremely encouraging.

At this juncture, we are thankful to LexisNexis Butterworths Wadhwa & Co, and NALSAR authorities for providing valuable financial and administrative support in conducting the event. If this Debate was anything to go by, the next one (to be held in July 2009) promises to be bigger and better.

Photos and videos (of the entire Debate) will be uploaded in a couple of days on this site.

That the Advocates Act bars anyone from denying to take up a case on the ground that the accused had actually committed the crime.

That in light of this; Kudos to Anjaji Waghmare for having the courage to represent Ajmal Kasab.

I had earlier written about the Catch-22 situation about providing legal aid to Kasab. While the Shiv Sena has already attacked her house and created a ruckus, there was some deliberation in Court as to whether she would continue with her client. The Court has now provided security to her.

Readers may read Kevin John Heller’s post on “Why I am Advising Radovan Karadzic?” for a possible explanation why lawyers defend known criminals.

“In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.”

Perhaps one of the most interesting and profound judgments off late has been that of Andhra Pradesh Civil Liberties Committee v. Govt. of AP, where the Andhra Pradesh High Court was deciding whether it is obligatory to file a First Information Report against the police officers who may have committed ‘crimes’ while taking part in an encounter. The judgment has come at a time when the country is grappling under terrorism, naxal ‘disorder’ and acts allegedly threatening the sovereignty of the state.

To elucidate the issue; when the police forces take part in an encounter that lead to the killing of persons, it was not possible to lodge or move ahead on filing an FIR by the victim. The apparent reason being because such acts were committed in exercise of the right of private defense and the executive then, in its discretion had the authority to dismiss the complaint. Furthermore, the state claimed immunity from disclosing the name of the police officers involved in the encounter operation thus making it difficult for an investigation to move ahead. These were the issues that the five judge bench of the Andhra Pradesh High Court was called upon to decide.  

 

“In this case, the Court [was] called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.”

In its ruling the Court held that it is obligatory on the police officer in charge of a police station to record an FIR under Section 154 even if it be committed against a police officer. In recording the FIR, the police officer cannot exercise any discretion in terms of the whether the offence had been committed or the complaint has any merit. This shall be the job of the judiciary and the existence of the claim of self defense is an extremely legal question that has to be determined only by a judicial process.

The judgment also delves upon certain essential principles of criminal law theory that would be useful for any law student.

In effect then, the Court negated an idea of immunity that could have been given to police officers that may have committed crimes in the guise of encounter deaths. Fake encounter killings are not inane to the Indian situation. Places like Kashmir, Gujarat, Punjab, Maharashtra and Andhra Pradesh was witnessed numerous instances where such encounters have occurred and this judgment of the Court re-iterates on the preservation of the rule of law and not giving a free hand to the police to kill.

This landmark judgment then came as a blow to the state government and the Centre who wanted some powers to check actions threatening the sovereignty of the state. When the case was appealed to the Supreme Court, the Court ordered a stay on the operation of the judgment and has scheduled a hearing soon.

Lord Cooke of Thorndon stated that his admiration for the Indian Courts (mainly the Supreme Court) in its ordinary work, particularly in the field of human rights, is no whit abated. He cited the judgment of Anand J. in DK Basu v. State of West Bengal to justify his statement. It takes a lot of courage for a Court of law to rule against a state policy and stand up for the protection of human rights. Though at times I have expressed by disgust for the way our judicial system works, these are solitary times when I wish I could retract my statement. Landmark decisions indeed !

Readers may also read Law and Other Things  on the case and developments therein. 

After Hamdan v. Rumsfeld, the Military Commissions Act 2006 gave power to the Bush Administration to define an ‘unlawful enemy combatant’ and decide whether the laws of war as codified in the Geneva Conventions and existent in customary international law were applicable to such person or not. The Act also contained provisions removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is ‘awaiting determination’ regarding enemy combatant status.

This idea of ‘unlawful enemy combatants’ was thus used as a justification to hold detainees in Guantanamo bay and to deny them access to habeas corpus. The United States Supreme Court has deliberated the legality of this notion in may case law. [See Boumediene v. Bush, 128 S. Ct. 2229 : Rasul v. Bush, 542 U.S. 466 (2004) ]

One of the promises of the Obama Campaign was to shut down Guantanamo Bay and rightly so, the moment he came to power he decided to shut down that ill fated detention centre within a given period. In In re: Guantanamo Bay Detainee Litigation, the Washington District Court is deliberating on the legality of such detention and the Obama Administration has recently filed a memo in that Court regarding its ‘new understanding’ of the situation in Guantanamo Bay. The memo now says;

“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

Thus, in as much as the power to arbitrarily define as to who is an enemy combatant has been done away with, there is a fixed definition that has been incorporated in the Authorisation of the Use of Military Force (AUMF). But sadly, this however does not change anything for the prisoners in Guantanamo as the consequences of this change are futile and they shall still remain in Guantanamo. This because, in as much as they may now not be enemy combatants, they still may have ‘substantially supported’ forces engaged in hostilities with the United States. 

My point then being, that newspaper reports in India that there has been a substantial change in the outlook are wrong and a deeper analysis is required to comment upon it.

What is laudatory however is the commitment of the Administration that the laws of war would be applicable to all the detainees thus doing away with the earlier discretion of the Bush administration as to whether the laws of war would be applicable or not.

The entire memo submitted to the DC Court is available here. 

See also Obama admin. to end use of term ‘enemy combatant’ . 

The Section 144 of Pakistan’s Criminal Procedure Code is similar to the Indian legislation giving the power to a magistrate to issue an order in urgent cases of nuisance or apprehended danger. Mustafa Quadri in The Guardian gives an interesting history of this legislation in India and Pakistan with its British Origins and critiques it with reference to the current state of affairs. To quote him,

“But the provision, sadly, has a much older history than that. Section 144 traces its origins to a British criminal code enacted in India as far back as 1860, just three years after the subcontinent’s first modern independence movement rocked British rule throughout north and central India. The provision was subsequently used routinely by British authorities well up to Partition in 1947. Many of the most celebrated leaders of the great civil disobedience project that eventually unseated the British were imprisoned using this most colonial of enforcement mechanisms.

The 1860 criminal code was adopted by Indian and Pakistani authorities after independence, and section 144 has been used to prevent civil disobedience in both countries for successive decades.

Pakistan‘s latest string of protests is no different.”

Perhaps when all forms of expressing dissent fail, civil disobedience may be pursued. The situation in Pakistan is tense with the Government in shambles. It is evident that there is no rule of law prevalent in that State and a movement towards its preservation in the manner of protests may then be justified.

With pressure being put across from all corners; national and international, if President Zardari does not cede to the demands of his adversaries, then probably Marital law may be the best alternative. Not unnatural in a supposed Constitutional democracy where the Army has ruled more than democratically elected governments combined. Truly history repeating itself.

A PIL has been filed in the Bombay High Court challenging the Bar Council of India Rule (Rule 28) that states that no person shall be admitted to a 5 year LLB course if he or she is above the age of 20 and to a 3 year LLB course if above the age of 30.

Yasmin Tavaria, the petitioner who enrolled for a 3 year LLB course at the age of 42 and was denied admission states,

 ”commitment to the profession and age can never be inversely related to each other and that the age of a person has no bearing on the degree of commitment with which he or she would pursue a profession.”

IIM’s and other professional institutions are doing away with the age bar; perhaps it is time that law schools do away with them too.