"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, May 28, 2015

My version of democracy v. your version - the Hong Kong experience

Electoral reform is in the agenda of Hong Kong’s Legislative Assembly and is hotly debated in public sphere. Democratic assertions of Hong Kong have attracted world attention lately by the sustained occupy movement spearheaded by the youth of Hong Kong. It showcased the spirit and aspirations of a major section of the Hong Kong people and stood ground against the indomitable Chinese political heads. The movement made an indelible signature in the political and social map of Hong Kong.

The eye of the storm is the election of the Chief Executive of Hong Kong for the impending 2017 term. Article 45 of the Basic law of Hong Kong Hong Kong states that [t]he Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People's Government.
The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. Specific method of execution of election is provided in Annexure I. Complete understanding of election process include annexures incorporating decisions of the National People’s Congress Standing Committee (NPCSC). The language of Article 45 has given enough play for the Central People’s Government to assert its intentions.

“Selected by election or through consultations held locally”- “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee” – Though there is no mandate so to say that Chief Executive is to be selected by election, NPCSC has decided that it shall be by universal suffrage. So far so good, but as it is often said, the devil is in the details, every eligible voter will have one vote but the candidates who shall be qualified to contest will be pre-screened by a nomination committee. Incidentally, the nomination committee of 1200 members is carefully packed with pro China sympathizers that the outcome of election, whether is it is A or B will be the choice of China and may not be of the people of Hong Kong.

The unrest was on this plan of the Central People’s Government to instill a political process similar to the National People’s Congress. The nomination Committee that was thought to be an interim arrangement, which progressively will give way to a wider world understanding of democracy and universal suffrage, is now here to stay. The reform proposals which were expected to bring the region closer to common understanding of democracy, on the other hand, is creating its own definitions. This realization, coupled with economic, cultural and sociological reasons that a major portion of Hong Kong sought for political self-determination in choosing their political head.

The present reform plan introduced by the Chief Secretary is fundamentally no different but with a new feature of a run off stage in the nomination committee. A candidate seeking to contest should get at least 120 endorsement of the members of the nomination committee, the endorsement may go up to a maximum of 240. Mathematically, this will limit the number of candidate between 5 to 10. There will be a run off election at this stage by secret ballot wherein the members of the nomination committee shall choose minimum two candidates who shall contest for the post of Chief Executive. They can vote for as many numbers of candidates as they wish additionally. It is only those candidates who get more than 50% of votes of the nomination committee who can contest the public election.

The mood of the public is difficult to gauge with demonstrations pro-democracy and pro-Beijing being staged alternatively in the city. One of the rally by the Beijing loyalist by conservative numbering was reported to be attended by 80000 people, but on the sidelines are stories that participants were paid, staffs of industrials houses were mandated to participate etc. The opinion polls by Joint - University Survey on 2017 Chief Executive Election Proposal show a statistics of 43.5% support for the proposal, 36.8% dissatisfied class  and 19.7% undecided group in the period between  20-24/05/2015.

The future of the proposal to be passed in the Council is grim unless the treasury bench gets the support of few from the pro democracy camp. The proposal needs two third votes to get passed. The composition of 70 members Legislative Council with 27 pro-democrats gives them a possibility of veto. A veto foreseeably will put the reform back to square one to the tune that the 2017 election will be conducted in the 2012 format. This will continue till Beijing loyalists get a clear majority in the Legislative Council to pass the reform package. A pro-democrat majority in Legislative Council in coming local body election contested on the platform of Electoral and democratic reform will be the defining moment of the popular sentiments. Nevertheless, the sectoral representation pattern of Hong Kong and the political arrangement at the hand over in 1997 will limit its self-determination to a significant extent.

Saturday, May 16, 2015

Supreme Court Upholds Arbitration Clause Referring to Non-Existent Arbitration Rules: Pricol v. Johnson

In a relatively recent decision in Pricol Ltd. v. Johnson Controls Enterprises Ltd. & Ors. [Arbitration Case (Civil No. 30 of 2014) dated 16 December 2014], the Supreme Court of India addressed a pathological arbitration clause and referred the parties to arbitration by virtually re-drafting the clause. Although the parties agreed in their arbitration clause for arbitration under the Singapore Chamber of Commerce, the Singapore Chamber of Commerce was not an arbitral institution having Rules for appointment of arbitrators. The Supreme Court held that the most reasonable construction of the said clause was that the reference was actually to the Singapore International Arbitration Centre. This decision reflects a pro-arbitration approach that has been the feature of arbitration in India since 2012.

A short paper of this blawgger evaluates this decision.

Wednesday, May 13, 2015

Shhh… Don’t tell Maneka, I cooked my chicken for dinner

I am glad none found killing the chicken, I rear in my pen and cooking it for dinner, awkward and called for support of Maneka Gandhi to book me under Section 428 of IPC. It had all trappings of attracting the attention of animal rights activists though.
  • Chicken was my pet for sometime
  • It not only served me but the neighbourhood also by its wake up calls. It was useful in keeping the pests and insects somewhat under control
  • I killed it
  • I cooked and ate it
This is all what three students did in Bengaluru, but the species differed, it was a dog. I don’t think lack of a wagging tail should make any difference for law that booked them from sparing me.

Section 428 reads thus;

Mischief by killing or maiming animal of the value of ten rupees.—Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

I am yet to find the legal logic that is used both by the police to invoke S. 428 and the overzealous Mrs. Gandhi and the activists to convince the police to register a case and arrest selectively these three students and not the members of innumerable village households that butcher animals for eating. If chicken, pork, goat is part of diet and available in market so is dog meat in certain parts of India. Bengaluru has not become a republic still, right? Had the accused persons stole a dog and killed, the case could have been different. It is different crime under a separate section of IPC. How is killing a chicken and a dog for food becomes different but for the emotions and values attached to it?

The values that a section of society or few hold is held against the whole world as ‘the right values’. To see beyond becomes impossible for these cloistered minds. This moral self-righteousness is the dwindling point of emancipation, growth and inclusiveness.

In the context of someone killing and eating dog, two values clash. Both clamor for the superiority over other. Each value may have relevance in its own context. It is not always proper to hedge one value against the other as if they are binary opposites and there is space for only one. The society is fundamentally plural, where multiple values can and need to coexist.

Religions like Christianity and Islam, to cite two active religions in India, have done great disservice to community by preaching singular truths and 'rest all living in sin' phenomena. India on the other hand had the culture of finding one's own god and salvation through one's own acts, being responsible to oneself. It is distressing though that the new wave Hinduism is denouncing that culture and is on the path of evangelization of their own creed.

In the culture of exclusivism and self-righteousness we are loosing the capacity to accommodate and appreciate that which we do not agree and understand. Things that we do not approve are not to be invariably opposed. In a democracy one should have a space to express opinion and discontent. As long as the practices of the other do not affect the fundamentals on which the society is built, it is better left to time to mature and solidify.

Choices in food is the luxury of plenty. When starvation hits, it is food that matters not what is eaten as food. Let us stop looking into what is in the plate of neighbour to judge. Let us see that our neighbours have enough in their plates to eat.

Friday, May 8, 2015

Costs in Writs and Appeals Dealing with Commercial Disputes

Recently, a three-judge Bench of the Supreme Court held in the case of NTPC v. Ashok Kumar Singh (pdf) that where there was a clear clause in the Notice Inviting Tender that Earnest Money Deposit (EMD) would be forfeited on revocation of tender, forfeiture of EMD on the happening of such an event was valid.

The High Court in the Writ Petition (from which the matter went on appeal through an SLP) challenging forfeiture of EMD got confused between the rudimentary concepts of revocation of bid by the bidder and revocation of the notice inviting tender, and quashed the forfeiture. The Supreme Court reversed this decision and held that the revocation of the tender/ bid and consequent forfeiture was clearly covered under the conditions of the NIT.

Two aspects are noteworthy here:  
  1. The matter was worth only Rs.7.8 lakhs. For this, the case went up to the Supreme Court. I am not surprised if the total costs towards this litigation (including advocate fee, travel costs of NTPC officials, loss of manhours, etc.)(which is ultimately the tax payers’ money) would have been more than Rs. 7.8 lakhs. This is in addition to the precious judicial time (of the High Court and of the three judges of the Supreme Court).  
  2. Had the bidder been a private party, the case would have gone to the Civil Court. Merely because bidder could file a Writ Petition in what is actually a commercial dispute does not mean that the real nature of the dispute, that is, commercial, is lost. In such a scenario, I am aghast that the Supreme Court did not award costs in favour of NTPC. Costs shifting in writ petitions seeking redressal of commercial disputes should be the norm. This will eliminate frivolous challenges like the one in the present case.
The fact that such a simple dispute has gone to the level of the highest court is appalling. Thankfully, the Supreme Court had delivered an excellent judgement to correct the blunder of the High Court.

Frivolous challenges to Tender related decisions has become the norm, especially in the case of Tender Notices of Public Sector Undertakings which are generally government entities competing with private players in the market. In such cases, the courts should not treat challenges to decisions in Tender processes as violation of Article 14 simpliciter but should view these as commercial disputes. Compensatory costs would have twin benefits in such cases. One, it would reduce considerably frivolous challenges and thereby enhance the competitiveness of the PSUs and two, it would compensate, to an extent, costs incurred in litigating the case.
This could be implemented right away through a series of directions by the Supreme Court under Article 142 of the Constitution of India in an appropriate case.

Wednesday, May 6, 2015

Tale of two cases: Judicial delays and social tensions

Judicial delays are in vogue only during intervals.  On Law Day or during high profile seminars and conferences where media attention falls. The constantly escalating statistics and ensuing discussions without tangible solutions have desensitized us. It do not to touch the daily lives of majority of the populace perceptibly except few unfortunate ones whose Kafkaesque existence have a brush with law. While the miserable litigant wait for years, grow old and shrivel and the door meant only for him closes on his face forever, how on earth should he react!

Statistics have a detaching effect.  It definitely offers critical overall assessment but obscures singular nuances, missing the trees while seeing a forest. Two litigations, one in which judgment might be delivered today ie., 6th May, 2015 and another decided on 6th of April, 2015 is engaged to image the impacts of delay in judicial process in particular and legal process in general.

Shamima Farooqui v. Shahid Khan is a petition for maintenance by a Muslim divorced wife under Section 125 of Cr.PC, which the SC of India allowed on 6th April, 2015. The judgment draws attention to an overwhelming aspect of maintenance litigations in the context of the present case. The petition for maintenance was filed in the year 1998 in the family court. It lived 16 years and travelled up to the national capital, for a person to get allowance to maintain oneself.  There was no order of interim maintenance during this entire period. In paragraph 13 of the judgment, Justice Deepak Misra squarely addresses the apathetic attitude of judicial officers and legal system and reminds what they owe to people and justice. Shamima Farooqui waited 16 long years in front of doors of law for what is due to her to sustain herself or merely to live. She alone will be the witness to what she endured during this extended period. Reducing her to a digit in the data disconnects her experiences of seeking justice through established means of legal system. Her travails become inert and disregardable.

One person was killed and four others injured when an SUV ran into footpath in September 2002. A trial that started after four years of investigation and the long winding legal process might culminate today, 13 years after. Life of the litigation perhaps is gearing up for further few decades as the possibility of appeal, review and even remand are waiting to commence. Thirteen years for a criminal case to reach its first verdict would sound ridiculous in any other civilized society, but for India, this seems to be the norm and normal. Media and public have debate and comments on various aspects of the case but the delay is a nonissue. 

Examining the reasons for judicial delay and fixing the problems of the legal system is not attempted here as it is been done ad nauseaum. Attempt is to link certain signals society is sending on the delays and denial of justice. Inordinate and unacceptable delays in justice delivery that go beyond private litigations, which in itself is problematic, when touches public lives and it reaches a critical level, society’s faith in legal system is bound to break. The sense of inability of the system to deliver justice will cause people to turn to substitute structures of power that is capable of dispensing instant justice. In the alternative, some become justice dispensers themselves according to their measure. The growing rate of public lynching as extreme examples and responses of ordinary public braying for blood of alleged rapists instantly without procedure are illustrations of this mindset. It doesn’t take long for the balance to tip. Such a society is a fertile ground for recruiters who promise power of transformation through violent means to the disgruntled youth.

The statistics of pending cases has more than mere numbers and percentages; it has tears, sweat, blood and forewarning. Each digit has a story to narrate provided we have sensitivities to notice. Then even digits will start to haunt.

Postscript: Early alumni of NUJS, sure will be fondly recalling their Labour Law teacher who could bring out tears while teaching Section 2A of Industrial Disputes Act, when he theatrically starts “deceased Shambhu Nath Mukherjee…”  The reference is Delhi Cloth And General Mills Ltd. vs Shambhu Nath Mukherjee, a litigation that started by a workman in 1965 in Labour Court and by the time the final verdict was delivered in 1984 by the SC, the judge had to start the judgment as ‘deceased Shambhu Nath Mukherjee’.

Monday, May 4, 2015

The distance between Sheshachalam to Baltimore

Two unfortunate incidents happened recently in two great democracies; India and US.  Sheshachalam murders allegedly by Government forces quickly followed by brutal killing of five under-trials in Alair while in transit, both occurred in Andhra Pradesh and the death of Freddie Grey in police custody in Baltimore. Police excesses are not stray incidents in either nations. The number, nature, character or magnitude vary though. Notable differences, however, are on three counts- public reaction, media coverage, and actions taken by the administration.

Seshachalam and Alair murders did not stir much public reaction in India, except outcries from few expected quarters, human rights and civil society groups. Alair not even as much as Seshachalam as those murdered were branded “Muslim terrorist”. Some of the comments posted by readers in national dailies to the news of encounter deaths applauded the police action of extermination and encouraged more such kill, an exposure of the outlook of a segment of the public. In Sheshachalam, dead were 20 hapless daily wage earners, portrayed by administration and a portion of Telugu media as seasoned smugglers. Odds were all against them. They were poor, lower caste and do not belong to Andhra Pradesh. In all likelihood, they wouldn’t even know for whom they were actually slogging.  The victims are expendable and easily replaceable. Public don’t care much about their existence or otherwise, there are one too many like them around and it is not closer home anyway to react.

The unscrupulous media memory celebrates each event, catastrophe and misfortune till the next. They enjoy the shortest memory span. These deaths were in news to be quickly faded, as it wasn’t igniting as much public interest as death of twenty ideally should. It stayed for sometime but eroded fast to give way to break more news.  Public response and media have a crucial link in contemporary society. News and social media can make or break a movement. Sheshachalam or Alair haven’t fallen within the attention zone of media, perhaps for the inappropriate victim profiles.

Curious to know what happened after the encounter murders? In case you are, I too am. There is no concrete official answer that I can find. Some scant media report says, FIR is registered in Sheshachalam incident. Against whom? Who has conducted the inquiry? Who will be conducting further investigation? Any actions to protect the surviving witness? Hmm… all questions need not get answers even in democracies. Be happy and contended that at least one can ask questions.  Alair, if media to be trusted, an IPS officer is investigating about the actions of his own junior officers. NHRC decided not to intervene in both cases as it wishes not to prejudice investigation.

All is not fine in Baltimore and in rest of US after the tragic death of Freddie Grey. Still miles away, I know the names of the perpetrators of the alleged crime, heard the charge being read out by the State Attorney, clear about the immediate actions the state has committed to take. It all happened because the public said in unmistakable terms that they want a police that is accountable. In my country, I am still at dark as to what my state is doing after allegedly killing twenty five people without any procedure. The method of this democracy is to brand a person Maoist, Terrorist or Smuggler and shoot.  This, if not challenged today and held accountable, tomorrow you or me might be called the same for even asking questions. Then, it will be closer home and too late to react.