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Hindutva seems to have got new vigour now. The Advisory Board constituted to examine Varun Gandhi’s hate speech and booking under the National Security Act has recommended the withdrawal of the said Act against Vaun Gandhi. (news item here)

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 The Advisory Board found otherwise and thus the booking against him under the Act has been revoked against him.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 


Law and Other things and the Indian Express have a series of posts and articles on Mayawati and her understanding of the constitution; the latest being Vinay Sitapati’s article in the Indian Express available here.

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.

With close to 70 lakh crores ( 70,000,00,00,00,000 ) of unaccounted public money stashed by politicians, bureaucrats and the rich in swiss banks and the like abroad, how does one get hold of that money ? The answer probably could be the latest writ petition in the Supreme Court wherein the petitioners have asked the Court to interfere in compelling the government to take actions to get the money back to India. While it is a noble cause, I opine that the Supreme Court interfering in this may not work.

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

That the Constitutional protection under Article 22 providing every detainee the right to be represented by a lawyer of his/her choice is sacred and held to be the foundation of our legal system. So much so, that the Court has stated that an accused may even be acquitted or a mistrial may be declared if found that he did not have a fair trial. (SD Kohli v. State of Maharashtra, jdg dtd. 18/12/2008 )

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.