Soumya Murder Case: Awaiting the debate between Justice Katju and the Supreme Court Bench (Guest Post)

Ms. Prerana Saraf, who writes at Legal Parley, has contributed this guest post on the Sowmya murder case and the recent order of the Supreme Court pertaining to Justice Katju. The guest post is reproduced below (with a few formatting changes).

Govindswamy v. State of Kerala came into the limelight after Markandey Katju, retired Supreme Court judge blamed the judges of making a grave error by acquitting the accused of murder on the basis of hearsay evidence in his personal blog, Satyam Bruyat.

In his blog post dated 17^th September, 2016, Markandey Katju questions how Supreme Court could rely on hearsay evidence which is inadmissible as evidence. He also mentions Section 300 of IPC, which reads that an accused is guilty of murder even if he had no intention to kill, if he has caused grievous wound that is sufficient to cause death.

On the basis of what has been observed in paragraph 398 of the judgment, he says that the Court has erred in its judgment and requests the court to review the same.

Facts:

On 1^st February, 2011, the deceased boarded the Ernakulam-Shornur Passenger Train at 5:30 PM to go to her home at Shornur. She boarded the ladies division of the last compartment. However, when the train reached Mulloorkara, all other lady passengers alighted the bus. Therefore, the deceased also got down with them and entered the ladies coach just in front of the last compartment. The accused saw that the deceased was alone and entered the ladies compartment as soon as the train left the Vallathol Nagar Railway station. The prosecution alleged that the accused assaulted the deceased and repeatedly hit her head against the walls of the compartment.

It is then alleged that the victim was dropped/pushed by the accused from the running train to the track. The accused also jumped from the other side, after which he lifted the victim to another place by the side of the track and sexually assaulted her.

The prosecution in support of their case had examined 83 witnesses. Among them Witness No. 4 and 40 were travelling in the general compartment and had heard the woman crying and wailing. Even though witness No. 4 wanted to pull the chain, he was told by a middle aged man that the woman had jumped off the train and made good her escape and that he should not take the matter any further as they would all then be dragged to the court. The witnesses brought the incident to the attention of the guard as soon as they reached Shornur, which triggered the search for both the victim and accused. The victim was then found in badly injured condition by the side of the track.

Analysis:

On the basis of the forensic evidence, the court found the accused guilty of rape under Section 376 of IPC and confirmed the imposition of life sentence as awarded by Trial Court and confirmed by High Court. With respect to the charge of murder against the accused under Section 302 of IPC, it was observed that the death was a result of two sets of injury. 

The court was of the opinion that the fact that first set of injury was caused by the accused did not need reconsideration, as it was already clear with the witnesses’ statement and the forensic report. 

However, the second set of injury was caused due to the victim’s fall from the train. The court was of the opinion that unless the fall from the train can be ascribed to the accused on the basis of reliable evidence as against the possibility of deceased herself jumping out, the liability of the accused for the victim’s death cannot be determined. 

In this connection, it was the state’s contention that owing to the first set of injury that had impaired her mental reflexes, the deceased could not have been in a position to jump off the train.

However, the court observed that the circumstances against the accused had to be weighed against the oral evidence of the witnesses. The statement wherein it is said that a middle-aged man told them that the girl had jumped off the train and made her escape.

Also, according to the forensic report, the death was caused due to the supine position (head and torso facing upwards) that the victim laid in. Here again, the court observed that the victim was kept in supine position only for the purpose of sexual assault and the fact that the victim was alive for a few days after the incident goes on to establish that the accused had no intention of killing the deceased.

Judgment:

The court, therefore held that the accused cannot be convicted of murder under Section 302 of IPC. The bench instead held him guilty under Section 325 of IPC, which provides punishment for voluntarily causing grievous hurt.

Suo motu notice by Supreme Court:

A three judge bench consisting of Justices Ranjan Gogoi, P.C. Pant and U.U. Lalit took suo motu judicial notice of Justice Katju's blog criticising the order and called for a debate on the case.

The order was passed after a review petition was filed by the state. The bench observed that it was not appropriate to take a decision until the debate with Justice Katju was over.

Justice Katju posted on his Facebook page that he has not received any official letter from the court. He has however, been informed by the Kerala State Advocate on record and he would be delighted to appear and discuss the case in the open court provided the Court feels that Article 124(7) does not debar him on account of him being a former Supreme Court judge.

Well, this would be one hearing to look forward to and hopefully the discussion would provide the victim and her family the justice she deserves.  

The Debate on the Law Commission's Questionnaire on the Uniform Civil Code: Some Comments

This post pertains to Questionnaire published by the Law Commission of India about reforming personal laws and the uniform civil code. The post is in two parts (both published in this post). The first part of the post attempts to answer the questionnaire. The second part of the post discusses a more serious aspect about the role of the Law Commission of India.

I: Responses to Law Commission's Questionnaire

[Disclaimer: This post represents the author's, and not the blog's view, on the questionnaire. The lead co-author, who is an expert in constitutional law (and this author is neither an expert on constitutional law nor on personal laws), we're sure, has a more nuanced perspective to the entire issue.]

The questions in the Commission's questionnaire are in italics.

1. Are you aware that Article 44 of the Constitution of India provides that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”? 

Yes. This matter requires further initiatives for the following reason:

The Directive Principles of State Policy (hereinafter “Directive Principles”) have been enshrined in the Indian Constitution primarily in order to promote social and economic justice. As per Article 37, these Principles shall be “fundamental in the governance of the country” and the Constitution of India has mandated “the State to apply these principles in making laws.” In the course of the Constituent Assembly debates, several members opposed to the idea of a uniform civil code, it was observed that a uniform law applicable to all would promote national unity and, at the same time, no legislature would forcibly amend personal law if people were opposed to it. 

At this juncture in Indian polity, considering the opposition to a complete disregard to personal laws and bringing in a uniform civil code it its stead, a civil code on aspects hitherto covered by personal laws may be a drastic move and may lack legitimacy. As noted by the Constituent Assembly, ultimately, the citizens should be subjected to one civil code. Hence, introduction of a Uniform Civil Code should be a gradual process. At the same time, personal laws are being regarded as biased, especially against gender. Many a time, personal laws operate harshly against a particular gender, which is against the Constitution of India. These realities must be kept in mind in a debate on the subject. 

Broadly, the reforms towards a Uniform Civil Code should be a two-step process. The first step should be bring about comprehensive reforms to personal laws thereby eliminating all aspects which discriminate against a particular gender and bringing them in line with the fundamental rights and the Constitution of India. The first step includes codification of customary practices in each personal laws and ensuring a uniform code under each personal law. Once sufficient reforms are achieved, the second step is to introduce a Uniform Civil Code.

Q. No. 2 regarding the ambit of a Uniform Civil Code does not arise in view of Answer to Q. No. 1. However, if introduced it should cover all aspects presently covered by personal laws. 

3. Do you think the existing personal laws and customary practices need codification? 

Personal laws and customary practices should be codified to bring clarity in them and prevent uncertainty in application. Codification will be very helpful in bringing such practices in line with the Constitution.

4. Will the Uniform Civil Code or the codification of personal laws and customary practices bring about gender equality?

Yes. Both per se cannot strictly bring about gender equality. But a UCC or codification will help bring certainty to these laws and practices and will enable ease of testing them for constitutional consonance. 

5. Should the Uniform Civil Code be optional?

As stated in answer to Q. No.1, in the two-step process, neither should be optional. The first step in codifying and reforming personal laws and the second step in bringing about a Uniform Civil Code. 

6. Polygamy, polyandry and similar customary practices should be banned as they are not in tune with the current circumstances. 

Reforming personal laws should include these aspects as well.

7. Triple talaq operates harshly against women and should be abolished in toto.

8. Do you think that steps should be taken to ensure that Hindu women are better able to exercise their right to property, which is often bequeathed to sons under customary practices?

None of the three options suggested by the Commission are appropriate. Following are the measures that could be adopted:

It is true that in many families, the testator bequeaths immovable property to sons rather than daughters. This author had the opportunity to deal with a similar case. While it is acknowledged that this is predominantly a social issue, a few safeguards in law could be taken: A provision should be introduced in the Indian Succession Act, 1925 to the effect that any bequest denied to a female heir but made to a male heir on the ground that the testator spent money and resources in getting her married or such similar reason should be void.

Another measure that could be adopted is that wills which deny benefit to a female heir but which grant the benefit to a male heir should be viewed as a suspicious circumstance per se. This would be rule of evidence than a substantive legal rule. This principle should be statutorily recognized so that the burden lies on the propounder to establish that there were sufficient reasons to deny the female heir of the bequest. 

9. Do you think that a two-year wait period for Christians violates Christian women’s right to equality?

Yes, it does. The wait period should be made uniform across all religions. The present two-year wait period operates as a source of corruption. Judges at their option apply decisions of certain High Courts (Kerala, the Karnataka and Bombay [Nagpur Bench] High courts) reading the two year waiting period as one year. 

10. Do you think that there should be a uniform consent age for marriage across all personal laws?

Yes. Consent is a matter of body and mind and has very little to do with which religion a person belongs to.

11. Do you agree that all religious denominations should have common grounds for divorce?

c. Not necessarily, However, the grounds should be the same for men and women. 

12. Would a uniform civil code address the problems of insufficient maintenance?

Yes it would. Even if the (suggested) first step to codify and reform personal laws is implemented as a first step, the law on maintenance should be able to adequately address the problem of insufficient maintenance. This is because maintenance is more a matter of economic security to ensure that the woman leads a dignified life and is not at all a matter of religion. 

13. How can compulsory registration of marriages be implemented better?

a. Temples, churches, mosques and other religious places which conduct marriages should be obligated to counsel the parties to the marriage to get their marriage registered.

b. Before issuing identity cards such as Aadhar Card, licence, ration card or documents such as passports, etc., the husband or the wife or the parent, as the case may be, applying for the said document, should furnish proof of marriage registration irrespective of the religion. 

14. What measures should be taken to protect couples who enter into inter-religious and inter-case marriages?

a. Special Marriage Act should be made simpler. Registration offices should not insist on producing marriage cards or receipts of proof of marriage, which they do in case of such marriages, even though the Act does not strictly mandate it. The Registration offices should, instead be offices where marriage is conducted in the presence of sufficient witnesses.

b. Where such marriages take place or registrations take place, the same should be adequately videographed and documented.

c. Special Protection Homes should be introduced in such cases where the bride and the groom fear their safety. Suitable counselors should be appointed. Special training should be given in trades and crafts to them and suitable economic opportunities such as jobs in self-help groups, etc. should be facilitated. 

15. Would a uniform civil code infringe an individual’s right to freedom of religion?

No, it would not. If a uniform criminal law does not infringe an individual right’s to freedom, a uniform code will not infringe on an individual right to freedom of religion. Further, Constitution of India is supreme and anything that conflicts with the Constitution cannot remain above the Constitution. However, as stated in response to question no. 1, this is not the appopriate time for bringing about a uniform civil code. 

16. What measures should be taken to sensitise the society towards a common code or a codification of personal law?

Firstly, the codification and reforms to be brought out should be from the specific communities themselves. Such codes should come from the communities themselves. Secondly, Law Commission should assess each such code for their constitutional compatibility with jurists and experts well-versed with each personal law and thrash out all outstanding issues and thereby reform and codify personal laws. 

Once these reformed and codified personal laws are implemented and their success gauged, introduction of a Uniform Civil Code will become a legitimate exercise.

Part II: Shouldn't Law Commission be Made an Independent Statutory Body?

The recent attack by certain sections of certain religions vehemently attacked the Law Commission's questionnaire. Among other allegations, the prominent one was that the questionnaire was an attempt by the Government-in-power to target certain religious communities. Irrespective of the validity of such a criticism, such comments reflect poorly on the Law Commission. The Commission is supposed to be a prestigitous body instrumental in initiating, discussing and suggesting reforms in law. Such allegations lower the image of the Commission. Another aspect is that the task of the Commission inherently involves the possibility of criticising the Government-in-power's laws and testing their effectiveness. Often the views of the Commission can (and at times, should) be in contradiction with the Government's views. For these reasons, the Law Commission must be an independent statutory body. It is time for a suitable legislation for making the Law Commission a statutory body and ensuring its independence and competence by a suitable process constituting it and laying down its framework. 

(P.S. Forgive us readers for not posting Part II of Sasan Power. We are in the process of completing the second part (Part II will deal with the MP High Court decision) and we will also post the concluding part hopefully by next week. Lots to post on, especially the recent decision of the Supreme Court on arbitrability of disputes involving allegations of fraud. )

Blue skies of Hong Kong - less pollution and hope of freedom & democracy in the air

The boycott of students have turned into a spontaneous "occupy central" by the last weekend. Instead of heavy traffic, pollution and commercial activities, the busy roads of central district of Hong Kong and certain outlying areas are now venues of student protest. The first night of occupation deepened the mistrust of the youth towards the administration. The images of indiscriminate use of tear gas canisters and pepper sprays on a mass of visibly unarmed students who made all efforts to convey to the police force their intention of non-violence touched the raw nerve of the community at large. 

Many whom I met on the on the streets and could strike up a conversation, overcoming the language barrier, shared the same sentiments- they could not remain at home after watching the images of use of force, students need support, we wont let them face this alone.  Most carried with them bottles of water, wet towels and food for the youngsters. This reaction might explain the complete absence of the police from the streets from day two. There were many, who were either neutral or would not have joined the protest in the streets but for the images flashed in local channels. Having said that, one cannot compare the actions of the police with the brutal force we are familiar in a country like India. That very night of standoff between police and protesters, students could be seen resting popped up against parked police vans. The next day morning Mongkok woke up to a police van sporting a flower on its front windshield with an invite to join the struggle for democracy. 

The continued siege from the next day onward show less of tension but more of responsibilities. A few ten thousands are always there on the streets, led and provided for by themselves. There is no visible leader in command, but of course the new age media is of immense help to communicate and coordinate. The occupy central leadership accept that the protest is ahead of schedule that the logistics planned are not in place. Students have organised provision supply points, first aid posts, trash collection and clearing arrangements. They manage themselves in order, at ease and in true sense of democracy. 

The values of democracy, freedom and the images of students armed with umbrellas and the resolve that cover them against the force of gas, sprays and the power have shaken up many people in various walks of life. The union of teachers of public school have declared strike, so also many other labour unions. The script of resistance so far is familiar and predictable, even the response of the administration. Chief Executive of Hong Kong have dug in heals and seems to have taken a position, let the occupation continue as long as it can last. The strategy as of now seems to be waiting for the steam to ebb out and the community to turn against the youth for disrupting daily life and livelihood.

Administration seems to sense that they were caught in the wrong foot in the use of force against the students that it brought the hitherto neutral bunch of people out into the street to rally up with the students.  Not all those who support the students stand for the cause but is touched by the media images. The wait is for the images to fade. Once media attention and interest is reduced for lack of action, sympathizers might turn around and begin to see the students as meddlers.

After the occupation, today is the first day the Chief Executive addressed the Territory. In his 15 minutes speech, he appealed the demonstrators to withdraw the illegal assembly that is causing disruption and inconvenience to the city, citizens and business. Stressed upon how this movement is affecting essential services like health, transport and ambulance. The leaders of Students Federation and Occupy Central have duly responded that they are ready to create humanitarian corridors for facilitating emergency vehicles to pass through. 

It is a stalemate. Even the Chief Executive have limited area to negotiate as strings are pulled by the Big Brother. The picture in South China Morning Post today is quiet ominous, a lone person viewing the streets of Hong Kong where protests are happening through a binocular from the People's Liberation Army Head Quarters and a series of tripods. 

   

The Cartoon Politics

Suhas Palshikar responds in today's The Hindu. He raises one plus five thought provoking issues in this piece. Concludes by pointing out the transformation of the understanding of the study of politics from statistical and historical information to dynamic notion of politics in the following words.

Politics is about creating and running institutions; politics is about power and about power being used for various collective purposes; politics is not a sanitised anthem of democracy but a shrill and not so sweet mix of different sounds. This politics produces governance — and sometimes may even fail to produce governance. Politics is ‘good' and ‘bad' — unlike the romantic movie, there are men and women in politics rather than sanitised heroes and heroines and villains and side villains. Is this not a robust and democratic depiction of politics?

Arbitration News

NLSIU and NUJS are reportedly in talks with arbitral institutions to set up courses for training students and others in arbitration. These institutions must be congratulated for taking steps towards creation of arbitral infrastructure (especially in terms of supply of competent and most importantly, honest, commercial arbitrators). However, it would do well if even the judges (who also form a part of the arbitral infrastructure) are trained in the principles of commercial arbitration. If we had adequate and competent arbital infrastructure, the Arbitration and Conciliation Act, 1996 might have worked.

P.S. I use the term 'arbitral infrastructure' to mean the participants, concepts, laws, rules, regulations, institutional rules etc that form a part of, or is involved, in the mechanism of arbitration as a means of settlement of commercial disputes. This would also include, inter alia, the judiciary (which performs supervisory and complementary functions vis-a-vis arbitration) arbitrators, arbitral institutions and their rules, the arbitration law and so on. (See, Gillian Hadfield, Law for a Flat World: Legal Infrastructure and the New Economy, where Hadfield introduces the concept of 'legal infrastructure'. Hadfield seems to restrict the meaning of the term to what the legal actors produce.)

News Reflections

News reports suggest that the CJI has nominated Justice SH Kapadia to be the next CJI. In a recent lecture titled "Developing Framework of Modern Litigation", Justice Kapadia is reported to have argued:

"Yesterday, I have reliably learnt that arbitration work and construction of contract is going back from India to abroad. We are likely to lose our investment if we are not aware of these concepts..."

Further, he seems to have said that his priority would be business and commercial laws. 

This is good news. We'll be, as usual, closely watching developments in contract and arbitration laws. Let us hope for the best.

Also, see this article in Business Standard which says that poor drafting of arbitration law has led to much confusion. On this aspect, and on the consultation paper, we'll be doing a lengthy post (or several small ones analysing the changes suggested. 

Law Ministry on Amendments to the Arbitration & Conciliation Act, 1996

The previous post in this blog noted that a consultation paper would be released today by the Ministry of Law and Justice on amendments to the Arbitration and Conciliation Act, 1996. A PIB (Press Information Bureau) press release indicated that the amendments would be on the following areas:

1. Section 2 (2) – Scope of application of Part I of the Act
2. Section 11-  Appointment of Arbitrators
3. Section 12- Disclosure by Arbitrator regarding any  interest in the matter
4. Section 28 (3)- Taking into account terms of the agreement and trade usage
5. Section 31 (7) –Rate of interest
6. Section 34- providing meaning of “public policy of India” and for harmonising  it with Sections 13 and 16
7. Section 36- Enforcement of arbitral award
8. Insertion of provisions for implied arbitration agreement in commercial contract of high consideration value. 

We'll post the consultation paper as soon as it is released.

The Commercial Division Bill and the 'Other'

On 16th December 2009, an eight page Bill titled ‘the Commercial Division of High Courts Bill, 2009” (“Bill” or “Commercial Division Bill”) was introduced in the Lok Sabha. The Long Title to the Bill seemed impeccant. It read:

A Bill to provide for the constitution of a Commercial Division in the High Courts for adjudicating commercial disputes and for matters connected therewith or incidental thereto.

The industry hailed it as a new dawn in the cumbrous, pricey, delusional dispute resolution scenario that commercial arbitration posed. The business media called it a giant stride (Business Standard, January 25, 2010. Members of the legal sodality heralded the Bill as a tread towards global standards (Dispute Resolution Hotline, Nishith Desai, January 4, 2010). A fortnight later, a stalwart of law, wrote a blistering critique in the Hindu, which made the government run to the critic and seek his opinion.

The author of the op-ed piece in the Hindu, Justice Krishna Iyer, wrote that the Bill sought to dichotomise justice by making an arbitrary, obnoxious, irrational, outrageous discrimination by giving a kingly treatment to the rich investor, making him fly through a two tier, efficient, modern judicial system, while lets the peasant, the widow, the persecuted trade union, the poor litigant rot through a multi-tiered judicial system, dying out even before the final verdict is delivered.

Shorn of the acerb lamentation, the leitmotif of the article seems to be that the government has not ensured such a system to the needy; instead it has pampered the rich with a fantabulous judicial system, thereby failing to fall within the good books of Article 14.

The Commercial Division Bill:

The Commercial Division Bill is a product of the Law Commission’s anguish at the timeserving paradoxical treatment meted out by the American and the English courts and the multinationals on the Indian legal system. This derogatory posture (inter alia, of non-neutral application of the forum non-conveniens doctrine) acted as a catalyst in making the Law Commission recognise that the Indian industry “must be given a clear assurance that commercial suits of high pecuniary value” shall be dealt within the first instance by a commercial division of the High Court which would ensure swift justice. The Commission felt that the swift resolution of commercial disputes by such a court would lead to an “overall benefit that may accrue by way of increased investment in India, both from domestic and foreign investors will be in hundreds of millions of dollars and the expense in constituting these fast-track, high tech courts will be small.”

Though not expressly articulated, the perceived reasons/ advantages of the Bill seemed to be as follows:

a) Mechanism for quick resolution of commercial disputes

b) Establishment of a separate class of judges well versed in commercial law

c) Consequent development of Indian commercial law.

Appraisal:

For Justice Krishna Iyer, the Bill creates a “dichotomy” in that the “Commercial” class enjoys a privileged position vis-à-vis the “Non-commercial” class that is made to decay in the court system. This, according to the him, makes it violative of Article 14, which does not allow affording privileged position to a select few. He does not stop here. He goes further to say that the creation of the dichotomy would result in further decay of the Non-commercial class because judges and resources will be directed towards commercial class. He laments:

“It is obvious that there is discrimination writ large here between two classes of litigants. This will also reduce the number of judges available to hear ordinary items of litigation, commercial, labour and land disputes that involve a jurisdictional value that is less than Rs. 5 crore. This will necessarily mean a longer time-span for the conduct of proceedings and final disposal by fewer judges who will be left to handle them.”

I do not understand why this complaint is raised. The Bill leaves it to the High Courts to decide on the number of “Division Benches” could be constituted. Even if there is a reduction in the number of judges available for deciding on litigation concerning the non-commercial class, what forbids the government from appointing additional judges to compensate for such reduction? I do not see any wrong in appointment of additional judges.

The issue is projected in such a way that the passage of the Bill would lead to hegemony that would belittle even slavery. Per the op-ed, a class of people has been given a special treatment on the basis that they have more money than others. Presentment of the issue into dichotomous, mutually exclusive classes (as rich v. poor) which are binary opposites, one ruining another, is problematic.

Justice Krishna Iyer thereby states that the Bill is against the constitution and therefore implies that the same should not be passed as an Act. The argument is flawed for a few reasons elaborated below. Consider a simplistic example: a family consisting of four people- a married couple, their daughter and son. The parents give favourable treatment to the son and deny the daughter identical treatment and instead treat her badly. The girl complains to an independent adjudicator (a family elder or a court) against the discriminatory treatment. Would the adjudicator order the parents to ensure equal treatment or would the parents be ordered to treat both of them badly? The op-ed argues for the latter, which does not seem to be the right approach.

While I applaud and admire the sensitivity of Justice Krishna Iyer in pointing out that the Government has excluded Non-Commercial classes from legal reforms, I do not understand why he seeks to argue for killing the Bill. Ideally one would have expected suggestions from him to ensure a pain-free dispute resolution process for Non-commercial class.

The ‘Rich’, the ‘Others’ and the ‘Other’

Justice Krishna Iyer’s categorisation that the ‘rich’ benefit by the Bill is defective for a few reasons. It is a massive simplification of intricate state of affairs that the Bill seeks to touch, intended or otherwise. That is where the critique is problematic. While attempting to defend the cause of few ‘others’, the he altogether ignores another ‘other’, a class which is the target of the Bill- commercial entities (Firms). The op-ed casts a stigma on commercial entities by calling them ‘rich’. However, Justice Krishna Iyer fails to point out the fact that Firms consist of ordinary people- people who work day and night, people who, often at the cost of their health and personal life, engage in a productive activity. Classifying them as ‘rich’ seeks to belittle their efforts. Make no mistake, I am not advocating leniency towards perpetrators of Bhopal or Enron here. My point is that branding of Firms as simply ‘rich’ entirely ignores their other dimensions.

Further, the way the legal system treats Firms is a shocking instance of repression and inefficiency. Millions of hard earned Rupees has been unnecessarily and undeservingly sucked up by the law industry, amply helped by judges and legislators who have given the Indian industry a commercial law system that is a pretense of the rich English commercial law. I work in the legal department of a Firm. In a case, we had to file a caveat before the Supreme Court. We drafted the caveat and sent it to our lawyers (a popular bunch of lawyers) in Delhi to file it before the Supreme Court. Can you imagine how much the fee was? Rs 12,000! Drafting the one page, two lined caveat? Go figure!

This is just a small example. I had already mentioned about costs that a company has to pay for arbitrating disputes in a previous post. To put the matter in context, I repeat relevant portions of the said post:

"In a typical ad hoc arbitration involving retired supreme court/ high court judges, the costs involved per day or a part thereof are as below:

1) a per sitting fee (one sitting is roughly equivalent to three hours) ranges between Rs. one lakh to two lakhs per arbitrator (that makes it 3-6 lakhs for three), plus

2) a one time reading fee of one to three lakhs, plus

3) fee paid to the senior advocate (which ranges anywhere between one lakh to four lakhs per appearance/ hearing/ hour- this might be a conservative estimate in arbitrations involving very large claims) plus

4) fee ranging between ten thousand to fifty thousand for the junior counsel (per hour) plus,

5) six-twelve thousand (again, per hour) if you are hiring a law firm to conduct all the drafting and briefing work, plus

6) a few thousands for the representative of the party litigating plus

7) the stay in a five star hotel for the three arbitrators (if the arbitrator is not from the city where arbitration takes place plus

8) 10,000-50,000 per day for the venue of arbitration

9) 1,000-2,000 for the typist/ administrative costs

The above is just a conservative estimate of costs that a company might incur in a day or a part of a day."

(Also see here where it is reported that some lawyers charge between Rs. 3- 5 lakhs for a five minute appearance in admission matters before the Supreme Court)

Exorbitant fees and below-par service is what the most lawyers in India have to offer to the industry under the pretense of legal services. I have heard several lawyers remark that the quality of service offered by most Indian law firms is nothing as compared to many foreign law firms. Indian law firms have successfully warded off foreign law firms for the time being.

We hardly find quality judges conversant with commercial law. The decisions of N. Radhakrishnan v. Maestro Engineers or DDA v. RS Sharma are recent examples that reflect the quality (or the absence of it) in dealing with commercial law aspects. A perusal of the judgments (even in the High Courts and the Supreme Courts) concerning commercial law would show a great deal of arm-chair, impromptu reasoning. For that matter, even retired judges of Supreme Court, when they act as arbitrators, fail to do their homework in familiarizing themselves with technical aspects/ commercial aspects of businesses. In an arbitration which I came across, three retired Supreme Court judges were arbitrators in relation to a contract. At the fag end of the arbitration (seven years after the filing of notice of claims) the arbitrators asked the parties the meaning of a term in the said contract which was previously explained to the tribunal several times by counsels from both sides. It took more than three years, after the completion of all hearings, for the arbitrators to give the award! But this is not to belittle the fact that many judges have tried to do justice to commercial law issues.

The state of the commercial dispute resolution system of arbitration in India is in shambles and ironically, Firms have, for several years, sought alternatives to this species of ADR. The rant of ONGC’s counsel about arbitration in Dolphin is a typical example of the Hobson’s choice that the Firms have. If they approach courts to resolve disputes, the courts would take years and the quality of judgement would be such that parties would have to go tier-after-tier till the apex court. Instead of courts, if Firms approach arbitrators, the story is worse. Therefore, Justice Saab, it is not only the poor litigant or the widow or the trade union but also the Firm who is the ‘crushed’.

Reflections

Professional politicians are the next genus

We have heard about politicians who are self made, dynastic and nurtured. Here is a new genus in the offing - professional politicians. An advertisement in the front page of today's The Hindu introduces "Asia's only Professional Training Program designed to motivate and activate Indian youth's entry into Politics and Government". The programme include courses on political processes, political communication, election management, campaign management, constituency management studies etc. Intership will be with 'renowned political leaders, political parties ... culminating into good career opportunities.' The degree awarded is Master's Program in Government.

Want a career in politics for your kids? Here is an institution that will train them for one of most lucrative positions,insulated even from economic recession. Did I hear somebody say that they only contribute to it...

Reflection

Was it necessary for the SC?

J. Venkesan in today's The Hindu has reported about a judgment by SC titled; Joint ventures will ease housing shortage, says Supreme Court. The court seems to have recommended the Ministry of Urban Development to adopt joint ventures - public private partnership - to address the housing problem. I am yet to read the full judgment and wonder was it necessary for the court to give its opinion/recommendation on a policy matter, which stands in the domain of other branches of the government.

Reflections

Irretrievable breakdown of marriage as a ground for divorce

Recently the SC held that irretrievable breakdown of marriage is not a ground for divorce under the Hindu marriage and Act and holding so would be legislating. See here. News reports states that the Law Commission of India has suo motu filed a recommendation to add this as a ground taking into the consideration the changed social realities.

Incidentally, this issue has been alive for a long period in the lives of different law commissions.

In 1978 the LCI had filed its report tilted “The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce. The Commission had recommended amendment to the Act to include this as ground for divorce. (See, pages 40-43 of the report, available at http://lawcommissionofindia.nic.in/51-100/Report71.pdf)

A later discussion can be found the 90th report of the LCI in the background of suggesting changes in Section 10 of the Indian Divorce Act, 1869. (see, pages 1-2, 5 of the report, available at http://lawcommissionofindia.nic.in/51-100/Report90.pdf)

Law has to be responsive to the changing social contexts to remain relevant to the contemporary society. The judiciary in this case has taken a right step in stating that it is the legislature to change the law and not them. It could be argued that, as the courts have always been, why can’t they be dynamic and interpret the law in such a manner to give relief to the deserved. There could be two considerations for the court while taking the position in this case: one the adage that “judges only expound the law, do not make them”, the other could be judiciary’s reluctance to lay hands on personal laws and the realisation that it shall rest with the domain of people’s representatives. Now, it for the legislature to respond.

This instance raises the debate about the role of the judges. ‘Should they be faithful servants of legislature or a co-operative partner in the establishment of policies?’

Reflections

The way laws are being made

The Hindu today carrys a news on the displeasure of the left parties on the way bills were passed in Parliament yesterday. Please also see the links of yesterday's post by Badri on parliamentary proceedings. The bills that were passed amongst others are the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, Prevention of Corruption (Amendment) Bill, Compensatory Afforestation Fund Bill and the South Asian University Bill. All these bills were passed by voice vote with nil discussion among pandemonium, screaming for the blood of A.R Antulay. BJP was putting up a face of nationalism and patriotism by the fracas they were creating. What is forgotten there is the fact that it is equally patriotic to pay due attention to the law making process for which the legislature is primarliy responsible.

The bills that were passed have reach beyond the small poitical ends and populist voice that were staged in the Parliament. The way in which the treasury bench passed the bill were equally opportunistic and it is as if they got a walk over. In the end there is no attention is paid to what is going to be the law.