"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.

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. 

Saturday, May 2, 2015

Assortment of SSRN articles on Constitutional Law in the month of April

1. Do Laws Have a Constitutional Shelf Life? By Alli Orr Larsen, Posted on April 20, 2015.
An interesting question is posed about the future of law that was relevant and rational when written but lost its value as time and circumstances change by. Relying on a decided case, it is assessed whether constitution gives the leeway to hold a law as expired, which was constitutional when enacted.

2. Free Exercise by Moonlight, By Marc O. DeGirolami , Posted on March 30, 2015,
Issue of religious accommodation and free exercise is the discussion in the background of two decided cases. Judicial decisions are analyzed reflecting its impact on later judgments and current day socio-political context.

3. New Institutional Mechanisms for Making Constitutional Law, By Mark Tushnet , Posted on April 2, 2015.
This paper searches new modes of constitution making beyond the traditional Constituent Assemblies and Interpretation.

4. Constitutional Amendment by Stealth, By Richard Albert , Posted on April 2, 2015.
In the context of Canada, the author argues a method of constitutional amendment that is calculated and surreptitious. This arguably is through a process of consciously creating new practices which successors are forced to follow that eventually settles into constitutional conventions. This leads to amend constitution without amending the text through established procedure.

5. Constitutional Law: Critical and Comparative, By Mark Tushnet, Posted on April 4, 2015.
An introduction essay to a volume of studies by Latin American scholars of constitutional law and theory. The scholars are reflecting on Tushnet’s works.

6. Elite Institutionalism and Judicial Assertiveness in the Supreme Court of India, By Manoj Mate, Posted on April 19, 2015.
“This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions.”

7. Enabling Resistance: How Courts Facilitate Departures from the Law and Why This May Not Be a Bad Thing, By Adam Shinar , Posted on, April 1, 2015.
The paper looks at constitutional interpretation by administrative officers. Argues that departing from strict letter of law for meeting certain contingencies is not all that bad.

8. The Supreme Court’s Power of Judicial Review in Bangladesh: A Critical Evaluation, By Kawser Ahmed , April 16, 2015.
9. Global Standards of Constitutional Law: Epistemology and Methodology, By Maxime St-Hilaire , Posted on  April 24, 2015.
Author is on a pursuit to identify ‘global standards for constitutional law’. The globalization of constitutional law has oriented development of constitutional law towards best practices and setting standards. Author calls this phase as “second order of legal positivity”.

10. Ethnic Rights and Constitutional Change: The Constitutional Recognition of Ethnic Nationalities in Myanmar/Burma, By Melissa Crouch , Posted on March 30, 2015.
11. But Names Will Never Hurt Me: Extending Hate Speech Legislation to Protect Gender and Sexual Minorities in New Zealand, By Vanessa Haggie, Posted on April 30, 2015.
The need to harmonize censoring of expression to curb hate speech is the highlight of the paper.

12. Same Sex Marriage in Hong Kong: The Case for a Constitutional Right, By Michael Ramsden  and Luke Marsh , Posted on April 3, 2015.

Thursday, April 30, 2015

Earthquakes and Surrogacy

Nepal is hurt. The people of Nepal deserve efficient administration, swift as well as responsive relief measures and empathy. Gestures of world reaching out to Nepal are heartening, though geographical, structural and administrative challenges makes the relief measures deficient. Among the news of support pouring in from various nations, one news item caught my attention, an operation of airlifting to Israel a sizeable number infants born to surrogate mothers of Nepal. (See here, here, here for the news). Israeli military and an Insurance Company apparently were involved in the evacuation.

In the background of a shattered and traumatized nation, issues of surrogacy might sound relatively insignificant.  The images of parents stepping out of aircrafts with bundles of joy revealed another impact zone of earthquake and an intersection of law. 

Nepal, like India, has progressively become a preferred destination for surrogacy for obvious reasons. A casual net search on Nepal’s surrogacy will pop up ample amount of options catering to the need of affluent communities. The irony is that, there is yet to be a law regulating surrogacy, though it has become an accepted million-dollar industry (estimated $2 billion in India) in both the nations. India has tabled a Bill and Nepal is contemplating one.

Israel’s surrogacy law does not permit same sex couples to benefit from surrogacy services. India denying Visas to same sex couples makes Nepal the best choice for Israelis who look for inexpensive options. The quake has mooted a renewed discourse in Israel on the need to amend the surrogacy law to include same sex couples and single parents desirous of offspring within its net. The media report highlight how the natural disasters that occur in 'third world countries' pose risk to Israelis who are 'reluctant presence in such nations' but for the discriminatory practices back home. Hope on revision of law is also expressed in Times of Israel, titled Nepal quake gives birth to hopes of Israeli surrogacy reform.

It is intriguing to find how natural calamity and a remote aspect of law like surrogacy interact.  Nepal will be focusing on rebuilding in the coming days. Attention should equally be paid to build a sound legal infrastructure that is also the rightful due of its people.