Wednesday, October 19, 2016

Access to Justice - Decoding Delays in Civil Cases

Earlier this year, Daksh India (of which blog member Harish Narsappa is a founder) conducted the ‘Access to Justice’ Survey. Through a method of random sampling,researchers interviewed about 9000 litigants, spread over 300 locations across the country. Of these, 4696 litigants had civil disputes pending before the courts. In this piece Rishabh Sharma and I analyse these civil cases. In particular, we examine those cases which have been pending for more than 5 years in the court of first instance. Our analysis is aimed at understanding what are the characteristics of these cases, and whether there is any pattern to the kinds of cases that are likely to witness such long pendency.

We find that there is a pattern behind long pendency of cases in the courts. Powerful parties have the ability to mould the system in their favour and obtain early relief when they approach the courts, but delay the matter when they are sued. Similarly, the most dis-empowered segments of the population are more likely to face delays in their cases as compared to comparatively better off persons. Finally, we find that the subject matter of a case impacts its likelihood of long pendency. Suits relating to land and recovery of money - both closely connected to a well-functioning economy - are more likely to face delays compared to other types of cases. This raises concerns about the economic costs of delays.

Friday, October 14, 2016

Women as Respondents under the Domestic Violence Act: Critiquing Harsora v. Harsora

Last week, in Hiralal Harsora v. Kusum Harsora, the Supreme Court held that Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 is unconstitutional to the extent that it defines "respondents" under the Act to only include "adult males" and the relatives of an aggrieved woman's husband/domestic partner. In effect, the judgment included women and minors within the definition of respondents, such that cases can now be filed against them under the Act. In this post, I argue that women should be exempt from the definition, at least as against their marital relatives. This exemption is based on power differentials within the family - power differentials that structure the occurrence, the subjective experience, as well as the adjudicatory evaluation of domestic violence.

Denial of Counsel in Arbitral Proceedings: Public Policy Implications Under S.34 of the Arbitration Act 1996

Guest Post by Badri Natarajan


This post discusses whether the denial of counsel in arbitral proceedings, can be against public policy for the purpose of S.34 of the Arbitration Act 1996 (the “Act”) and the principle of “equality of arms” that is a core part of natural justice.

I will argue that an arbitral clause denying (both) parties the right to counsel is likely to be valid, unless it breaches the natural justice principle that there must be equality of arms and a level playing field between the parties, in which case it will be against public policy and liable to be set aside under S.34 of the Act. An arbitral clause that denies counsel to one party only is likely to be invalid on that ground alone. 

This post is based on a S.34 petition in the Madras High Court, in which I represented the Petitioner challenging an arbitral award (TC Mohan v Emkay Commotrade Ltd, OP 818 of 2013). The petition was dismissed, but the judgment has not yet been pronounced, and therefore the High Court’s reasoning is unknown, since the case involved a number of other substantive issues.


The detailed facts of the petition are not relevant. The 90 year old retired Petitioner (an investor) entered into arbitration proceedings against the Respondent (his broker, which is a member of the Multi Commodity Exchange of India, the “MCX”). The proceedings were governed by the MCX Bye-Laws and pursuant to Rule 15.22 of the Bye-Laws, neither party was entitled to legal counsel. Accordingly, the Petitioner represented himself and the Respondent was represented by a Legal Officer whose qualifications are unknown but is believed to have had legal training and experience in handling disputes of this nature. They resulted in an Award against the Petitioner, which was subsequently challenged in the present case.

Depending on his interpretation of Rule 15.22, the Arbitrator may have allowed the Petitioner to be represented by another person with legal training (as long as they were not a qualified advocate). However, the question never arose as the Petitioner assumed he could not be represented by anyone when he was told that he could not be represented by an advocate. He was not expressly informed that he could be represented by someone other than a qualified lawyer. In any event, it is not clear that Rule 15.22 would allow this, but that discussion is beyond the scope of this piece. The Respondent was not affected by this issue because they were not represented by a third party (qualified lawyer or otherwise) - they were represented by an employee who was a Legal Officer with experience conducting legal proceedings. 

In August 2013, a writ challenging the constitutionality of the same MCX Bye Law Rule 15.22 was filed in the Madras High Court (Mary Roseline and Stephen v Geojit Comtrade). Only press reports of this writ are available but it appears that the Petitioners in that case obtained an interim stay order before the commencement of arbitral proceedings and did not proceed under the Act. However, the final disposition of this writ is not known. 

Denial of Counsel in Arbitral Proceedings May Be Against Public Policy

Our argument was that applying Rule 15.22 to arbitral proceedings is against public policy under S.34(2)(b)(ii) of the Act. This is because a restriction of this kind is against the principles of natural justice and in particular, the right to a fair hearing.

The law relating to public policy in the context of S.34 is complex (and there is no direct binding precedent on this point), but most of it is not relevant. It is clear that an award made pursuant to a serious disability against the principles of natural justice will be against the “fundamental policy of India” and “justice or morality” as set out in ONGC v Saw Pipes (2003 (5) SCC 705) and therefore against public policy for the purposes of S.34. 

There is no general rule that natural justice requires the right to legal representation in all circumstances. The Supreme Court has held in a number of cases that denial of legal representation – even if it was in accordance with disciplinary rules by which the parties were bound – is a breach of natural justice on the facts of the case. In particular, it has done so in circumstances where the other side was represented by a legal practitioner (very broadly defined and not necessarily an Advocate).

Restrictions on the right to legal representation have also been upheld in a range of cases, provided that there is equality of arms – that there isn’t a situation where one side is represented by a legal practitioner, but the other side does not have the right to be represented by one. In other words, the Supreme Court has repeatedly struck down restrictions on the right to legal representation where one party (usually the employer or government) is represented by a person with legal training and experience in conducting legal proceedings (even if they are not legally qualified) and the other party has no such experience and is representing themselves, which is exactly what happened in the present case, rendering the resultant Award liable to be set aside under S.34 of the Act. 

A single Judge of the Bombay High Court held (Faze Three Exports (2004 (2) Arb LR 163 (Bom)) – Para 8-10) that S.24 of the Act affords parties the right to be heard by the tribunal and natural justice requires it since arbitration is a judicial proceeding. Every Court/Tribunal with a duty to act judicially must allow a party to be represented by a legal practitioner as that is a part of the duty to act fairly.

However, the learned Single Judge went on to observe that:

“I am of the considered opinion that even in arbitration proceedings, parties are entitled to be represented by a legal practitioner if they so desire unless they have agreed in writing that none of the parties shall be represented by a lawyer.”

There is no further analysis of this point and it may be obiter in any event. In particular the learned Judge does not appear to have heard submissions about, or considered the line of cases dealing with the need for equality of arms in the context of legal representation. Nevertheless this broad statement must be read down in line with the principles laid down by the Supreme Court and larger benches of the Bombay High Court on those grounds.

The Supreme Court has held (in JK Aggarwal (1991 (2) SCC 283), Para 4 onwards):

“It would appear that in the inquiry, the Respondent-Corporation was represented by its Personnel and Administration Manager who is stated to be a man of law. The rule itself recognises that where the charges are so serious as to entail a dismissal from service the inquiry-authority may permit the services of a lawyer. This rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reason of the appellant being pitted against a presenting- officer who is trained in law. Legal Adviser and a lawyer are for this purpose somewhat liberally construed and must include "whoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser". In the last analysis, a decision has to be reached on a case to case basis on the situational particularities and the special requirements of justice of the case. It is unnecessary, therefore, to go into the larger question "whether as a sequel to an adverse verdict in a domestic enquiry serious civil and pecuniary consequences are likely to ensue, in order to enable the person so likely to suffer such consequences with a view to giving him a reasonable opportunity to defend himself, on his request, should be permitted to appear through a legal practitioner" which was kept open in Board of Trustees of the Port of Bombay v. Dilipkumar MANU/SC/0184/1982 : (1983)ILLJ1SC . However, it was held in that case: “In our view we have reached a stage in our onward march to fair play in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated....(p. 837) 5. On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice; particularly, in view of the fact that the Presenting-Officer was a person with legal attainments and experience. It was said that the appellant was no less adept having been in the position of a Senior-Executive and could have defended, and did defend, himself competently; but as was observed by the learned Master of Rolls in Pett's case that in defending himself one may tend to become "nervous" or "tongue tied", Moreover, appellant, it is claimed, has had no legal background. The refusal of the service of a lawyer, in the facts of this case, results in denial of natural justice.”

A Division Bench of the Bombay High Court has (in Venkatraman v Union of India (1986 IILLJ 62 Bom), Para 11-16) reiterated the points made by the Supreme Court in Port of Bombay cited above, and further explained why the definition of legal practitioner should be read broadly to include legally experienced individuals, in order to ensure a fair fight between the parties.

Conclusion: Principles

I submit that the correct interpretation of the law in this area is that there is a right to be represented by counsel in judicial proceedings (including arbitral proceedings) as a matter of natural justice, but it is not absolute and can be restricted or contracted out of. 

However, such restrictions cannot have the effect of removing “equality of arms” or disturbing the level playing field between the parties, and restrictions which have such an effect will be against the principles of natural justice and therefore invalid. 

In particular, this means that (a) a party cannot contract out of the right to legal representation unilaterally, where the other party is entitled to representation and (b) even if both parties are not entitled to representation by counsel, a party cannot be denied counsel if the other party is represented by a “legal practitioner” (even if such a person is not legally qualified but is merely more experienced and knowledgeable in the legal field). 

If a party is denied counsel in arbitral proceedings in breach of the above principles, an award arising out of such flawed proceedings will have been reached in proceedings that did not satisfy the requirements of natural justice and the right to a fair hearing and thus be against the public policy of India and liable to be set aside under S. 34 of the Act. 

This conclusion is in line with the broader societal interest in maintaining equality of arms between litigating parties. While there can never be perfect equality in the real world (and one party is likely to have a better case on the merits), there is a societal and judicial interest in promoting equality of arms to the extent possible, as laid down by the Supreme Court. While denying the benefit of counsel to one party, but not the other is plainly against this principle, the courts must also be wary of restrictions that appear neutral on their face but have the effect of breaching this principle in particular situations. For example, the restriction in the present case would have been much less objectionable if it was limited to disputes between MCX members (who are all relatively sophisticated entities with the resources to obtain legal advice and conduct litigation themselves if required), but extending it to disputes between MCX members and retail clients, who are frequently unsophisticated small investors with no experience of the legal system is more questionable. 

In this context, while beyond the scope of this post (and possibly be the subject of a future post), it is interesting to note the backlash against arbitration as a dispute resolution mechanism in the United States in the last year or so and consider the impact of similar tactics in India. The US backlash relates to the use of compulsory arbitration clauses in standard-form contracts with retail consumers (particularly in the financial services industry), with (allegedly) a view to deprive consumers of an effective remedy against the large corporate counterparty. 

(Badri Natarajan is an Advocate and English solicitor with a dispute resolution practice in the Madras High Court and London)

Tuesday, October 11, 2016

Has the Supreme Court's Ganga Judgment Reduced River Pollution?

How sustained are the impacts of the Supreme Court's decisions on environmental issues? Shareen Joshi, a development economics excerpt at Georgetown University, addresses this issue in a forthcoming paper. She focuses on the Supreme Court's decision tackling industrial pollution in the Ganga. According to Professor Joshi, "difference-in-difference" estimations indicate that the ruling led to reductions in river pollution and one-month infant mortality.

The paper tests whether the identified health impact is fully explained by policy-induced changes in pollution levels. The analysis also quantifies the adverse impact of water pollution on infant health and documents the persistence of such impacts in downstream communities.

Saturday, October 08, 2016

Article 74: Filling the Void

(Guest Post by Tejas Popat)

V Venkatesan in his latest post and one in 2009 talks about contingencies when the Prime Minister or a Chief Minister is unable to discharge his/her constitutionally mandated duties. In this regard, in the older post, he states that our Constitution does not provide for an officiating Prime Minister because:
  1. It would be impossible to vest enormous power in someone who is just officiating.
  2. He/she might not enjoy the confidence of the House.
I will humbly differ.

Vesting of enormous power

It would not be trite to state that any of the ministers of the Council would be incompetent to responsibly exercise the powers of the Prime Minister. Also, not any minister from the Council would be the Prime Minister. It would only be one among the senior and experienced minister who would be called upon to ultimately occupy the post in the interim. Therefore, the fact that the incoming minister would not be competent enough should not be a serious concern. Constitutionally, both the Prime Minister and any member of the Council of Ministers have to meet similar requirements and take the same oath.

Enjoying the confidence of the House

He also states that “An officiating PM cannot enjoy the confidence of the House, even if the Constitution had sanctioned it.” Here, a look at history may be useful. In the draft Constitution, Schedule 4 provided for ‘Instructions to Governor of States in Part I of the First Schedule.’ Enlisted at point 2 was an instruction which read,
“2. In making appointments to his Council of ministers the Governor shall use his best endeavours to select his ministers in the following manner, that is to say, to appoint in consultation with the person who in his judgment is most likely to command a stable majority in the Legislature those persons (including so far as practicable members of important minority communities) who will best be in a position collectively to command the confidence of the Legislature. In so acting, he shall bear constantly in mind the need for fostering a sense of joint responsibility among the ministers.”
Later, in the Constituent Assembly, on 30 December 1948, Dr. Ambedkar said,
“It will be seen that we have in the Draft Constitution introduced one schedule called Schedule 4 which contains the Instrument of Instructions to the Governor as to how he has to exercise his discretionary powers in the matter of administration. We have analogous to that, decided to move an amendment in order to introduce another schedule which also contains a similar Instrument of Instructions to the President. One of the clauses in the proposed Instrument of Instructions will be this:
"In making appointment to his Council of Ministers, the President shall use his best endeavours to select his Ministers in the following manner, that is to say, to appoint a person who has been found by him to be most likely to command a stable majority in Parliament as the Prime Minister, and then to appoint on the advice of the Prime Minister those persons, including so far as practicable, members of minority communities, who will best be in position collectively to command the confidence of Parliament."”
Nothing of this ever came through. It has been suggested that these Instrument of Instructions were introduced to act as a check on the discretionary power of the President and the Governor.

As to their absence in the Constitution, S. Chatterjee in his book (Governor’s Role in the Indian Constitution) states:
“Subsequently, however, the Instrument of Instructions were removed from the Constitution on the clear assurance given by Ambedkar and other members of the Drafting Committee that the President could act only on the aid and advise of his Council of Ministers.”
Hence, they were omitted for a reason which does not immediately concern us. However, The Instrument of Instructions makes it clear that any persons forming part of the Council should equally be able to command the confidence of the House. Hence, the concern that the Prime Minister is sui generis and therefore irreplaceable, at least temporarily would not be in line with the Instrument of Instructions.

Further, the Prime Minister in choosing the Council would be aware that in case of a contingency, one of the members of the Council he chooses would replace him in the chair. As far as those not in the Council, the same would not be true. Hence, in a contingency, the President would then be justified exercising his discretion and calling of the member of the Council to be the interim Prime Minister. And, as I stated above, such a choice would not be made blindfolded. Hence, while our Constitutional set-up does not explicitly provide for a ‘No. 2’ it certainly gives some guidance to the President. All of this would equally apply to a contingency at the State level, like the one which V Venkatesan points out.

(The author is a student at the National University of Juridical Sciences, Kolkata. He would like to thank Sharath Ninan Mathew for his comments and suggestions.)

Thursday, October 06, 2016

After Amma, Who?

The question, `After Jayalalithaa, Who?', may sound premature to the followers of Tamil Nadu Chief Minister, J.Jayalalithaa, but it can no longer be avoided, especially when she is confined to a hospital bed, with access to her restricted to a select few.  

The issue of political succession is a grey area in our Constitution, as there is no provision which provides for an automatic succession to the office of the Prime Minister or a Chief Minister, in situations when the incumbent is incapable of taking decisions herself, because of prolonged illness.   

This blog has dealt with this question earlier in 2009 when the then Prime Minister, Manmohan Singh's temporary illness, led to such concerns.  

The resulting vacuum could paralyse governance, bringing the administration to a grinding halt. The question of proxies close to her taking key decisions on her behalf, without her knowledge, cannot also be ruled out.

The secrecy surrounding her illness, therefore, is a matter of concern, as shown by the Madras High Court entertaining a PIL on the issue. Today, the high court is likely to hear the PIL seeking directions to authorities to file a status report on her health condition, and whether she is in a fit condition to take decisions on governance.  

Jayalalithaa was admitted to Apollo Hospitals, Chennai, for fever and dehydration on  September 22, and there is an intense cloud over her current health condition, with authorities unwilling to share specific information.  

Jayalalithaa, according to Vaasanthi, her latest biographer, has never encouraged a second-in-line as her political heir because she thinks it would be suicidal.  There is no one in sight anyway; and she does not know what would happen to her party after her, she says.

Well, that is what happens to all personality-centered political parties, and the ruling AIADMK in Tamil Nadu, which she leads, is no exception to this phenomenon.

But Vaasanthi’s biography suggests that her failure to encourage a second-in-line as her political heir, could be attributed to her own personality, characterised by bouts of insecurity and turmoil in her personal life.

Charismatic leaders have their ups and downs in politics. However, as their lives are inevitably tied to the governance of the states, especially when they find themselves exercising Constitutional responsibilities, it leads to concern and anxiety among the people who adorn her.

As Vaasanthi shows in this tiny book with just 173 pages, [AMMA: Jayalalithaa’s Journey from Movie Star to Political Queen By Vaasanthi, Juggernaut, 2016, Rs.299], Jayalalithaa’s rise in politics has been fascinating. She comes out as an ordinary girl, with professional aspirations in the film world, and with a vacuum in personal life, is inevitably drawn into public life by her mentor, MGR, who the author shows, as not having sufficiently understood her potential for politics and public service.

Being a single woman in a male-dominated world, she had everything going against her.  She suffered the worst ignominy which any politician could imagine, by becoming the first chief minister in office, to ever go to jail, last year, when a trial court in Karnataka found her guilty in the D.A. case against her, and imposed a sentence of imprisonment on her. But she took all these in her stride, and led her party to victory in the subsequently-held assembly elections in the  State. The Karnataka high court later acquitted her in the case, which has been appealed against by the  State of Karnataka in the Apex Court.

True, everything against her cannot be attributed to her gender, and the disadvantage resulting from it; but when her biographers maintain a distance from contemporary perceptions of her public life, may find it a challenge to judge it in a gender-neutral sense.

This is her fourth innings as the Chief Minister of Tamil Nadu.  Vaasanthi’s book helps the reader to understand the insecurities, indignities, and the uncertainties which she suffered in her struggle against her rivals in politics, and how she was determined to overcome them and turn her adversities into political advantages.  

Her relationship with her political mentor, and former chief minister, MGR - who was also her guru in the film world - is something which needs to be told with compassion and sensitivity, keeping her gender in mind. The author achieves this remarkably well.

The book is sketchy in its treatment of her court battles.  That, of course, would require a separate book.

As she battles her enigmatic sickness in Chennai, there is intense speculation about what the Supreme Court’s judgment will be in the appeals filed by the State of Karnataka against her acquittal by the Karnataka high court in the disproportionate assets cases against her.   The judgment in the case, heard by justices Pinaki Chandra Ghose and  Amitava Roy, was reserved during the summer vacation, on June 7.

It is now four months after the hearings in the case were concluded in the  Court, and it is not clear whether the Judges would be inclined to deliver their verdict/s especially at a time when lack of correct information about her health condition has led to all sorts of rumours and concerns in the state.   

Update: The PIL seeking the real health status of the Chief Minister, has been dismissed by the Madras High Court today.

Wednesday, October 05, 2016

The Erroneous Judgment of the Supreme Court in Govindaswamy v. The State of Kerala

Guest Post by Rudrajyoti Ray, Advocate, New Delhi and Kolkata

It is murder, if the intentional infliction of bodily injury is sufficient in the ordinary course of nature to cause death. In February 2011, a day before her engagement ceremony, 23-year-old Soumya was injured, raped and robbed. She died a few days later, in a hospital, having never regained her consciousness. Death was occasioned by a ‘combination’ of two injuries, the first injury and the second injury, and complications that arose from subsequent sexual assault. Neither of the two injuries nor the sexual assault was sufficient alone, in the ordinary course of nature, to cause death. The second injury could not be ascribed to the accused. For want of that ascription, unfulfilled ‘combination’, the breakage in the chain of causation, the SC ruled out murder in Govindaswamy v. The State of Kerala [Criminal Appeal Nos. 1584-1585 of 2014] (“Govindaswamy”), pronounced on 15.09.2016. A death penalty handed by the Trial Court and confirmed by the High Court was set aside. Aggrieved, the State of Kerala has publicly pledged to challenge the decision. Soumya’s mother has already filed a Review Petition before the SC.

Since the matter turned on the second injury, it is of special interest. Soumya’s head was repeatedly banged against the walls of a train compartment (i.e., the first injury). Later, she either jumped off the train or was pushed out by the accused. The train had negligible speed. At any rate, her fall caused the second injury. The SC considered, unless the fall from the train could be ascribed to the accused on the basis of cogent and reliable evidence, meaning thereby that “the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of the train was ruled out”, the liability of the accused for the said injury could not necessarily follow. 

The State attempted to argue that in view of the first injury and the ‘impaired mental reflexes’ of Soumya, she could not have taken the decision to jump. While the SC accepted that the said proposition was not ‘necessarily incorrect’, it attached greater weight to the evidence of two ‘chance witnesses’. Prosecution Witness No. 4 and Prosecution Witness No. 40, travelling on the same train, had heard and believed a ‘middle-aged man’, that Soumya had jumped on her own. 

Hearsay evidence does not derive its value solely from the credit given to the witness himself, but rests also, in part, on the veracity and competence of some other person. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into Court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross-examination [See Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532]. It is absurd that that ‘middle-aged man’ was never brought to trial, even as the reliance on his word by P.W. 4 and P.W. 40 has trumped medical opinion before the Highest Court of the Land. 

The allergy to hearsay evidence is not always justified. It may be accepted under certain circumstances [See State of Haryana v. Rattan Singh, AIR 1977 SC 1512]. All the more reason it was important to take note of Prosecution Witness No. 47, who conducted the potency test of the accused. The accused had fairly confessed to P.W. 47 to have pushed out Soumya off the train. Extra-judicial confessions made to a doctor can be accepted provided there is no evidence at all to suggest that any policeman was present when the accused made the confessional statement before the doctor [See M.A. Antony v. State of Kerala, (2009) 6 SCC 220]. Two Courts below relied on the extra-judicial confession made by the accused to P.W. 47 and considered the same admissible, voluntary and made without any coercion, undue influence, or threat. Discarding the evidence of P.W. 47 at the altar of the hearsay evidence of P.W. 4 and P.W. 40 is another absurdity of the judgment in Govindaswami. The SC failed to interpret crucial oral and documentary evidence on record. 

Even if Soumya had jumped out of the train, there was no breakage in the chain of causation of bodily injuries on her, by the accused. Injuries, that were sufficient to lead her to death in the ordinary course of nature. That is murder. Soumya did not break the causal chain when jumping off the moving train to protect herself from sexual assault. According to Dr. Mrinal Satish, Associate Professor of Law, and Executive Director, Centre for Constitutional Law, Policy, and Governance, NLU Delhi “there is sufficient case law to back such argument”.

As the State of Kerala and Soumya’s mother prepare for a Review before the SC, they must know old arguments are not enough to reopen concluded adjudications. A Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in a miscarriage of justice [See Kamlesh Verma v. Mayawati, (2013) 8 SCC 320]. Govindaswamy, the appellant-accused, still carries a ‘life imprisonment’. For those against death penalty laws, ‘life imprisonment’, is sufficient justice. It is my prediction however that the setting aside of Govindaswamy’s conviction for murder will continue to haunt our jurisprudence for sometime. We shall wait for the story to unfold further. 

Sunday, September 18, 2016

Gautam Bhatia's "Offend, Shock or Disturb" - A Review

Guest Post by Adithya Reddy
Gautam Bhatia’s book on free speech is a first of its kind work on any Part III right. It will be indispensable reading for any future research on the constitutional history of free speech, as also on the contemporary status of this right in the country in comparison to other common law jurisdictions. What Bhatia seeks to do in this book, however, is much more than provide an exhaustive or even critical work on legal developments in free speech jurisprudence. He discusses the philosophy of free speech in some detail. He does so not through a single thread of argument or theory but by offering snippets from the views of various philosophers. Some of these views are used to buttress his own arguments while others help in explaining philosophical underpinnings of hard facts in case law.
Right at the beginning of the book he attempts to offer justification for the need to understand the philosophy of this freedom. In choosing the example of the Sakal Papers case to do this, he skips discussion on the more fundamental aspects of free speech philosophy. Sakal Papers case and his entire discussion of the “meaning of freedom” centres around the philosophy of market/ ‘background’ regulation as a means of regulating free speech. This, just like his detailed discussions on whether speech can be restricted through prior restraint or what should be the content of free speech, is secondary to a larger philosophical question - articulated by Professor Tom Nagel in his Dewey Lecture at the Harvard Law School. The question is whether a rule (in this case the protection of autonomy to express oneself) should be followed only for the sake of its adherence or because of the consequences of the failure to do so. While discussing John Stuart Mill, Bhatia acknowledges the hazards of a purely consequentialist justification for free speech. But Bhatia’s discussion of alternatives including Thomas Scanlon’s theory of autonomy, Dworkin’s endorsement theory or Habermas’s self-legislation, is not satisfactory. These views, as mentioned earlier, are brought out only in the form of snippets and do not help Bhatia build any cogent argument. Bhatia acknowledges that many of these anti-consequentialist alternatives have their origins in Kant, without realising that in Kantian philosophy dichotomies such as those highlighted in the book (for example, between public morality and individual autonomy) blur to such an extent that (while criticising Dworkin) the Legal Positivist Mathew Kramer misleadingly points to the “manipulability of the Kantian ideal”.[1] 
While these shortcomings can justifiably be overlooked since the book is not an exclusively philosophical work, Bhatia’s attempt to weave a bit of his own philosophy on ‘constitutional morality’ in a couple of chapters is the book’s weakest part. In his chapter on obscenity, Bhatia concludes that morality as considered by Indian courts in various judgments does not offer satisfactory basis for restricting free speech. Therefore, he proposes, on the lines of Dworkin and many other writers, that the morality that the courts should use to guide themselves in restricting free speech should be ‘Constitutional morality’. According to Bhatia, constitutional morality is morality that is located within the constitution as opposed to morality reflected by perceived social standards or the individual morality of the judge concerned. Therefore, for Bhatia, equality being such a fundamental principle of our constitution should offer a valid basis for our courts to determine the extent of any restriction. The first problem with this postulation is that it requires reading of one part of the constitution in the light of another, even if the latter was not meant to be of relevance to the former. Taking inspiration from American feminists and the Canadian decision of R. V. Butler, he postulates that the equality principle could be a legitimate tool for interpreting ‘decency & morality’ in Article 19(2) to restrict pornography since it has the effect of “subordination and silencing of women”.    The effect of such a reading may be quite drastic. It would mean that while some obscene material could be restricted on the ground of perpetuating gender bias, material with far greater degree of obscenity will escape restriction if it carries no offence to the principle of equality or any other principle ‘located within the constitution’.
Bhatia’s juxtaposition of this theory of constitutional morality in the context of hate speech (following Dworkin’s pupil and critic Jeremy Waldron) is far more problematic. Holding that restriction on hate speech should be viewed as a means of ensuring inclusiveness also means that hate speech is permissible against the mainstream and restriction should be independent of the level of hate involved. In the Indian context the definition of marginal groups and groups that require ‘inclusive’ treatment can be deeply controversial. In at least a couple of places Bhatia hints that this approach could have a caste dimension.
Neither Dworkin nor Dr. Ambedkar[2], while laying down their versions of constitutional morality, required such morality to be located in any individual principle located in the Constitution. Constitutional morality is about reading the Constitution as a whole in the light of the historicity of its founding principles. It can be nobody’s case that any provision of the Constitution appeared out of thin air or even from the pure intellect of its founding fathers. Justice Vivian Bose calls the right under Art 14 “a way of life, rather than a precise rule of law”.[3] If that is so, would it not be necessary to consider when and how such a principle- gender equality, in the case of Bhatia’s example- became a part of Indian way of life? It is fairly settled that Indian consciousness on gender justice arose in the wake of the Bengali renaissance, which was essentially a conservative movement rather than a liberal one. If Raja Ram Mohan Roy relied on the rights of ancient Hindu women[4] to demand equal share of property for women, would similar ancient principles not be relevant today if the Supreme Court were to understand equality and gender justice? In fact, Dworkin’s version of constitutional morality in the American context requires precisely such a reading of the Constitution. He says that the restriction on allowing judges to use their own morality in interpreting the Constitution should be “the moral reading…that fits the broad story of America’s historical record”.[5] His example is even more telling –“Even a judge who believes that abstract justice requires economic equality cannot interpret the equal protection clause as making…collective ownership of productive measure, a constitutional requirement because that interpretation simply does not fit American history or practice.” Therefore, constitutional morality is not about reading one facet of the Constitution in light of another merely because both are located in the same text but by reading each facet through its own morality. Viewed in this context, one should not feel so much indignation, like Bhatia does, at the Supreme Court’s view in Rangarajan’s case that speech should be tempered by concepts such as “Dharam” or the principles of “Thirukkural”.
Bhatia’s views on equality as a guide for restricting free speech also exposes incoherence in his philosophical analysis. After criticizing Ranjit Udeshi’s paternalistic view of morality using Dworkin’s theory of endorsement, he relies on a school of thought termed by Dworkin as the “strongest new attack on freedom of speech”[6] to define morality. As mentioned earlier Bhatia believes that the American feminist intellectual movement against pornography offers a reasonable example of equality being used to restrict free speech. Dworkin was the strongest critic of the works of Catharine Mackinnon and Andrea Dworkin which advocated this approach.  Bhatia should not have skirted this debate.
Some of Bhatia’s other individual views appear to be ideological and are not adequately rationalized. For instance, he offers no major justification for placing commercial speech on a lower pedestal under Art 19(1)(a) except that Indian circumstances don't warrant wholesale importation of “American Jurisprudence and Reasoning on Commercial speech”. Rather than getting lost in the byways of argumentation, Bhatia should have focused efforts on delving deeper into the philosophical positions of the several writers he attempts to survey.
(Adithya Reddy is a lawyer practicing before the High Court of Madras)

[1] See M. Kramer, In the Realm of Legal and Moral Philosophy: Critical Encounters, pg. 67. It is however wrong to to call the Kantian idealmanipulable. To understand Kants views on autonomy and freedom, one must understand all the complex preconditions he envisages for their realand rationalexercise. For a good idea of these preconditions see John Rawls, Kantian Constructivism in Moral Theory, The Journal of Philosophy, Vol. 77, No. 9, 515
[3] Bidi Supply Co V. UOI, AIR 1956 SC 479
[4] Rammohun Roy (Raja), Brief Remarks regarding Modern Encroachments on the Ancient Rights of Females, According to the Hindoo Law of Inheritance, 1822.  
[6] R. Dworkin, A New Map of Censorship, Index on Censorship, Vol 23 1994.

Sunday, September 11, 2016

Australian Correspondence: Lessons for ‘Trade and Commerce’ in India from Cole v Whitfield

As Vikram has previously noted, Part XIII of the Indian Constitution (regarding trade, commerce and intercourse within India) has once again arisen for interpretation. These provisions draw upon (but are not precisely equivalent to) section 92 of the Australian Constitution, which reads as follows:
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

The brevity of the clause belies the heat and contention that has accompanied its interpretation. At his retirement in 1952, Chief Justice John Latham (himself a deeply conservative figure and former Opposition Leader) declared (in light of the trouble and controversy that the section had caused lawyers and judges alike) that '[w]hen I die, s. 92 will be found written on my heart': (1952) 85 CLR ix. In the same year, Geoffrey Sawer observed that s 92 had ‘caused more differences of judicial opinion and greater conflict between decisions than any other provision of the Constitution’ (cited in Buck v Bavone (1976) 135 CLR 110) – arising, in large part, from the charge that the section had been employed to frustrate attempts at economic regulation in Australia (by federal and state governments alike), serving as ‘the bulwark of private enterprise’ and an impediment to socialist reforms.

That is to say, Australia’s equivalent to article 301 of the Indian Constitution was both interpreted more broadly than article 301 itself (with s 92 at one stage afforded the de facto status of an ‘individual right’, rather than a mere constraint upon particular exercises of state power) and was, in large part, not subject to the constraints imposed by articles 302 and 304. There are hence differences both in terms of text and political climate (with the latter contributing to the ‘individual rights’ theory of the clause employed in mid-20th century Australia), both of which must be given substantial regard in any attempt to employ Australian caselaw or Australian understandings of the guarantee to its Indian equivalent. (Vikram has previously criticised over-reliance on Australian cases in this regard. As flattering as it was for me to arrive at NLSIU and meet students who were more familiar with Australian caselaw than their counterparts in Sydney might have been, there are definite limits to comparativism in this regard.)

In recent decades, a relative ceasefire has prevailed in Australia regarding section 92 after decades of contention (albeit with some continued controversy). This owes, in large part, to the High Court of Australia’s unanimous decision[1] in Cole v Whitfield (1988) 165 CLR 360. This post briefly examines the potential salience of the High Court’s decision in Cole v Whitfield to the interpretation of Part XIII, in terms of methodology and substance.

Cole v Whitfield concerned a challenge to a clause of the Sea Fisheries Regulations 1962 (Tasmania) prohibiting the taking or possession of undersized fish. The respondents were charged (in Tasmania) with the possession of undersized crayfish imported from South Australia. The Court noted (at 384-385) that ‘judicial exegesis of [s 92] has yielded neither clarity or meaning nor certainty of operation’, despite approximately 140 decisions of the High Court and Privy Council on its interpretation. In reconsidering its approach, the High Court had regard (exceptionally and unusually, from an Australian standpoint) to the history of the drafting of the section, including the political and economic climate at the time of Australia’s Federation, late-19th political divides over ‘protectionism’ between the Australian colonies, and debates at the Constitutional Conventions (at 385-391). The Court’s conclusion (at 391) as to the purpose of the section – ‘to create a free trade area throughout [Australia] and to deny to [the Central government] and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries’ – is presented both as the product of this political and drafting history and as justification for departure from the failed interpretive models of the past.

The eventual model arrived at – which may be summarised (as at 400) as the prohibition of ‘interstate border duties and other burdens of a discriminatory kind’ – may appear relatively simple, but amounted to a substantial departure from eighty years’ worth of controversy, discarding failed models of the section as a guarantee of individual rights or by reference to the ‘criterion of operation’ of laws impugned.

What lessons can be learned from the Australian experience? First, method. The unanimity of the justices was matched, to an unusual degree, by unanimity among the States and Central government (appearing as interveners in the hearing), whose Solicitors-General ‘grasped the nettle and decided to present a united front’ in seeking a new approach.[2] The decision itself drew upon both existing disenchantment with orthodoxy (or the lack of any accepted interpretation) and upon scholarly critiques, particularly those of Michael Coper (who appeared as junior counsel for NSW during Cole v Whitfield). Within the relatively staid, traditionalist environment of Australian constitutional law, Cole v Whitfield represents something of a revolution; it is telling (and instructive if any similar, lasting shift is sought in India) that the revolution occurred amid relative consensus as to the undesirability of the existing model, and was able to command and draw upon historical and legal scholarship. Cole v Whitfield hence both prefigured an end to partisan contestation over the meaning of the section and grew from a consensus among governments of all ideological stripes that something must be done. India’s ‘jungle of jurisprudence’ concerning Part XIII may ultimately be susceptible only to a similar moment of consensus.

In terms of the outcome reached, I emphasise, again, the textual differences between the Australian and Indian clauses (despite their genealogical relationship). This difference is relevant both insofar as the unique restrictions upon article 301 in the Indian context ought to lead to different results and in that the words of section 92 and Part XIII are (as the High Court emphasised in Cole v Whitfield) the results of particular historical and political contexts. If nothing else, the Indian Supreme Court may, in considering Cole v Whitfield (and its emphasis upon historical context), judge that the Australian provision is the product of unique Australian conditions and that precedents emerging from that context should be weighed in light of the very different political and historical exigencies prevailing in India.

The revolution in Australian constitutional law represented by Cole v Whitfield should not, however, prove effective solely within Australia, just as prior Australian decisions were not restricted in their influence to this nation. To the extent that prior Australian orthodoxies (and efforts to evade those orthodoxies, including the notion of ‘compensatory tax’) have been taken into account by the Supreme Court – as in Automobile Transport (Rajasthan) Ltd v State of Rajasthan, in which the Court cited and drew upon Australian caselaw even while cautioning as to the limits of comparative experience – the Supreme Court must reckon to the extent to which its precedents have been shaped by understandings of section 92 that no longer hold true even in that section’s birthplace.

[1] Unanimous judgments of all seven judges of the High Court are relatively rare: see e.g. Lynch and Williams (2015).
[2] Michael Coper, ‘Cole v Whitfield’ in Blackshield et al, The Oxford Companion to the High Court of Australia (2003) 108.

Friday, September 09, 2016

Throttling Net Neutrality: A Fast Lane to Success?

Guest Post by Ashwin Murthy

Net neutrality in its most basic understanding is the principle that Internet Service Providers (ISPs) and the Government regulating the Internet must treat all data of the Internet the same. In a situation however where these bodies can increase the productivity of the provision of Internet to the consumer by discriminating between different sites and their data packets, the question arises as to whether this too would be against the principle of net neutrality and thus should be rendered unviable. Perhaps the clearest example of the same would be slowing down certain sites in exchange for speeding up other sites, a process known as throttling and fast-laning. Each site is essentially a collection of data packets (packets of information transmitted via Internet). By distributing data packets of different sites at different speeds, a level of optimisation can be reached that cannot be provided by distributing the data packets of each site at the same speed. Thus more data intensive sites could be given priority over less consuming sites – multimedia sites over text-based sites is the simplest form of distinction to understand. This could be extended even further, where ISPs divide which sites to speed up, thus allowing the consumer to choose which is most beneficial for their personal use. In the Indian context, this could be understood in the example where Airtel would ‘speed up’ all multimedia sites (YouTube, Vimeo, Netflix, etc.) and ‘slow down’ all other sites while BSNL would do the same with news sites (The Hindu, Times of India, Al Jazeera, etc.) and so on.

At first glance, this system seems entirely advantageous to the consumer, allowing a choice in ISP catered to one’s needs and is not explicitly against the definition of net neutrality given by TRAI (after phenomenal participation of activists) in its Prohibition of Discriminatory Tariffs For Data Services Regulations, 2016 (or rather lack of a definition as pointed out by Rajeev Chandrasekhar in his letter to TRAI). This definition merely speaks of differential pricing and tariffs based on content of the sites and not differential speeds. However, the spirit of the Regulations, and net neutrality as a principle, is against such measures of differential speeds in provision of data packets and speed allotted to different websites, a point which TRAI Chairman RS Sharma brought out in his interview with The Wire. Further, the Internet Freedom Foundation (IFF), a group dedicated to working on and protecting network neutrality in India, provided a clearer definition of net neutrality, which is against this measure proposed. It could be argued that abandoning net neutrality in such a scenario is beneficial, however as clearly elucidated by an article by the Indian Express and an article by Save The Internet, net neutrality is a necessity for the Internet to be beneficial for its consumers. Net neutrality has always been a core principle upon which the Internet was created, a point which Web creator Tim Berners-Lee along with the Professors Barbara van Schewick, and Larry Lessig brought out in their open letter to European citizens, and such fast lanes and throttling requires discrimination based on the content of the data packets which is against the principle of net neutrality. TRAI through its regulations has made it clear that it is in fact in support of net neutrality, and thus such a measure is against Governmental policy and rules. The current legal position on net neutrality is rather lacking, restricted to the Regulations made by TRAI, however it could extend far beyond this rudimentary definition.

Furthermore, while this system may appear to be beneficial to the customers, it comes with its own share of problems. When delineating that multimedia sites would be boosted by Airtel, there must be a metric for determining what sites would constitute multimedia sites. In the current context of the Internet, such lines are blurred to the point of non-existence. News channels all contain multitudes of videos while many video sharing sites use large quantities of text in their content, preventing a metric to be easily created. Allowing ISPs, or even the Government, to determine this metric creates a specific mould based on existing, already successful sites. All multimedia sites would have to resemble YouTube or Netflix, creating a lack of diversity available to the consumer and a monopolization of these original already powerful sites that create the mould. New players to the market would be at a substantial disadvantage, having to conform to these moulds and thus would have to compete directly against their already established, bigger competitors, providing the same content to an already saturated consumer looking for something new.

This specific topic of throttling and fast-lanes will be taken up by the Government and the Department of Telecommunications, however there has been no mention of deadlines or time periods within which one could expect change. Organisations such as IFF are pursuing the issue and striving for complete net neutrality, however this leads to the question of whether such an absolute net neutrality is in fact beneficial. Considering that net neutrality may entail certain suboptimal procedures and measures, it could be argued that compromises could be worked out to reach a more efficient version of what we possess today. It is easy to perceive such a measure as positive and beneficial to the consumers; similar debates revolved around Facebook’s Free Basics and where, among other things, it was questioned whether net neutrality was of a higher value than providing free internet to millions. However, it must be realised that disposing of net neutrality, apart from losing its immense advantages, also disposes with a fundamental part of why the Internet is what it is – a space for freedom and creativity, a zone for innovation and expression. Throttling is just an example of abandoning net neutrality, however the scope extends far beyond, all in the name of ‘optimisation’ and better performance and delivery of service. This choice between the two is something that the government and citizens must take into account – whether it is better to sacrifice certain principles that should be held as inviolable and paramount in the aims of a high level of optimisation and productivity or to uphold these principles and settle with a perhaps less oiled machine, a machine that does the task yet does not attain its full potential.

Of course, this question isn’t limited to solely net neutrality and the Internet. The Government must make this decision almost on a daily basis. Reservations, pensions, subsidisations – these are all trade-offs between productivity and principles. It is however the prerogative of the Government to uphold these principles, an ideology the Constitution can be seen to maintain, particularly in the Articles 38 and 39. Striving to minimize inequalities, ensuring that material resources of the community are distributed to the common good of all citizens – these are Constitutional provisions that highlight this internal struggle between the two, deciding in favour of principles. It is the Government who creates the principles for the rest of the people to interpret and follow – forsaking equality for higher efficiency is exactly what the government should prevent from happening. The question as to what the Government actually does with respect to throttling as well as other such decisions between principles and productivity shall only be answered in the future, however the power of the people must not be forgotten, particularly in the light of the TRAI Regulations that were spearheaded by citizen participation. It is now as much our prerogative as it is the Government’s to ensure that these principles are upheld and not discarded for promises of productivity.