Thursday, May 11, 2017

The unconstitutional saga of Justice Karnan

Tuesday, 9 May 2017
The unconstitutional saga of Justice Karnan
by Seema Sapra 

The Supreme Court of India has not handled the Justice Karnan contempt case in accordance with the Constitution and the law, including the Contempt of Courts Act. 

J. Karnan had written an open letter to the Prime Minister accusing 20 sitting and retired Judges of the Supreme Court of India and the Madras High Court of corruption. This letter was addressed to the executive and not to the Supreme Court. The Supreme Court ought to have ignored this letter. The writing of such a letter cannot ipso facto amount to contempt of court because the charges made therein could (hypothetically speaking) be true. 

Instead a seven Judge Bench of the Supreme Court issued a contempt of court notice to J. Karnan for the letter but without mentioning it. Ideally J. Karnan ought to have appeared before the Supreme Court and he should have argued the case for his defense and the Supreme Court ought to have heard him. But before any of this could happen, the seven-Judge Bench of the Supreme Court passed an ex-parte order against J. Karnan without notice to him, that directed that he was barred from performing any judicial or administrative functions as a Judge of the Calcutta High Court. This order violated natural justice as it was passed without hearing J. Karnan. This order was not within the parameters of possible orders or punishments under the Contempt of Courts Act. And most importantly, this order violated the Constitution of India.

A High Court Judge like Justice Karnan is appointed under a Presidential warrant and derives his judicial powers directly from the Constitution of India and not from the Supreme Court. A High Court Judge cannot be removed from his office by the Supreme Court. He can only be impeached by Parliament. The Supreme Court cannot do indirectly that which it is prohibited by the Constitution from doing directly. The Supreme Court cannot take away judicial power from a High Court Judge who remains a Judge under a valid Presidential warrant of appointment. The Supreme Court cannot take away judicial powers which it cannot confer. Therefore, the Supreme Court’s orders directing that J. Karnan could no longer function as a Judge of the High Court were illegal and unconstitutional. Note that even in the case of contempt proceedings against lawyers, the Court cannot at the ex-parte stage debar the lawyer from legal practice. 

J. Karnan ought to have appeared before the Supreme Court and ought to have argued why his letter to the Prime Minister could not or did not amount to contempt of court. He should also have argued before the Supreme Court that its orders purporting to take away his judicial powers were unconstitutional and invalid. 

Instead J. Karnan made the mistake of refusing to appear and defend himself before the Supreme Court. Was he being misguided by some lawyers? Was he being drugged? These things happen. 

J. Karnan elected to continue to exercise his judicial powers and passed retaliatory orders against the seven Supreme Court Judges hearing the suo-moto contempt case. While under the Constitution, J. Karnan was technically correct in his position that he was still a High Court Judge who derived his judicial powers from the Constitution, yet strategically these retaliatory orders were a mistake as the executive and the police ignored J. Karnan’s orders. No authority executed his orders. He was functioning without the assistance of the High Court registry. Justice Karnan of course also violated natural justice by purporting to pass orders in his own cause. 

From a purely technical constitutional law position, all of J. Karnan’s orders passed after the Supreme Court order barring him from judicial work, could only have been challenged in appeal. Any other position would defeat the independence guaranteed to High Court Judges under the Constitution. The Supreme Court has set a dangerous precedent in this case: that it can take away judicial powers from a High Court Judge. This position adopted by the Supreme Court of India violates the Constitution which provides that a High Court Judge can only be removed from his position by the Parliament. No doubt the orders that J. Karnan continued to “pass” were problematic, but J. Karnan’s basic understanding of the constitutional position was not incorrect. 

As stated before, the mistake J. Karnan made was in refusing or failing to defend himself before the Supreme Court. This made it possible for lawyers like Fali Nariman, Ram Jethmalani and K K Venugopal to call J. Karnan mentally unbalanced and a “lunatic”. This also led to the Supreme Court being encouraged by K K Venugopal to pass an order that J. Karnan be medically examined to ascertain his mental health. The Supreme Court went on to pass a completely unjustified order directing that J. Karnan be examined by a team of doctors and that the Police provide assistance for such examination. J. Karnan refused to submit to this examination and informed the team of doctors in writing that he was mentally stable. 

J. Karnan’s final mistake was in again failing to appear before the Supreme Court on 9 May 2017. In his absence, the Supreme Court has pronounced him guilty of contempt of court and has sentenced him to imprisonment for the maximum period of six months permitted under the Contempt of Courts Act. This order, it must be pointed out, has been passed without giving J. Karnan a proper hearing. This order appears to have been passed not only for the original letter that J. Karnan wrote but also for all his subsequent actions including his subsequent retaliatory “judicial” orders and his press statements. 

The Supreme Court order dated 9 May 2017 convicting J. Karnan of contempt of court can be read at https://drive.google.com/file/d/0BzXilfcxe7yuaTdwUVNORXQxc28/view
This order states that a detailed order will follow and it does not describe which actions or statements of J. Karnan were used to find him guilty of contempt and why. There is no reasoning in this order. Is it not improper for the Supreme Court to direct a man to be arrested and imprisoned forthwith even before it pronounces a detailed and reasoned order that includes both the facts and the legal analysis necessary to convict that man? 

Having initiated the contempt case, the Supreme Court Judges ought to have compelled J. Karnan’s presence before them using non-bailable warrants if necessary. The Supreme Court should have heard J. Karman and then passed final orders. The Supreme Court should at the very least have asked J. Karnan the question – why did he write the ‘offending’ letter that was the reason for the suo-moto contempt notice issued to him. 

I fear that J. Karnan will be drugged and maybe even poisoned in prison during these six months and he will not be himself when he is released. 

All in all, the entire affair is unfortunate. The Supreme Court has violated the Constitution. Its orders have damaged judicial independence. No Judge will ever dare to expose judicial corruption fearing the same fate as J. Karnan. The wrong precedent set by the Supreme Court could in the future be used by the executive to seek similar orders against an upright but inconvenient High Court or Supreme Court Judge. Judicial orders could be used in the future to take away judicial powers from any High Court or Supreme Court Judge for any number of possible reasons. 

Parliament’s exclusive powers have been infringed upon by the Supreme Court of India. What if Parliament were to approach the Supreme Court and claim that the Supreme Court had encroached upon Parliament’s territory and trespassed into the domain reserved exclusively for Parliament. The Supreme Court’s orders in J. Karnan’s case violate the principle of separation of powers under our Constitution. 

In the 1990s, the Supreme Court of India used judicial orders to create the extra-constitutional collegium system and it assumed to itself the power to appoint Judges. Now in 2017, the Supreme Court is creating new extra-constitutional powers for itself and is assuming to itself the power to indirectly remove High Court Judges by judicial orders that restrain such judges from exercising judicial powers. Note that this power could also be available against a Supreme Court Judge. Could seven Supreme Court Judges sitting together judicially restrain another Supreme Court Judge from exercising his judicial powers? A precedent has been created which is dangerous for judicial independence. 

The first instance of a sitting High Court Judge being jailed in India is not a case where the said Judge was accused of corruption or wrong-doing. Instead it is a case, where a Judge who accused other Judges of corruption and wrong-doing is being sent to jail, without any inquiry into his complaints of corruption and wrongdoing against these other judges. The system works to protect itself. 

The Supreme Court Judges have also preemptively restrained the media from publishing any further statement issued by J. Karnan. If J. Karnan were to say tomorrow that he was being harassed, drugged or poisoned, will the media not be allowed to report this. If J, Karnan were to issue a press statement tomorrow describing his reasons for writing the letter complaining of corruption or wrongdoing by those 20 Judges and producing evidence in support of his complaints, will the media not be allowed to report this statement involving the public interest. Has J. Karnan being sentenced to civil and social exile or death? And what about the free speech rights of J. Karnan and the rights of the press to report about his future circumstances and actions and the rights of the public to know the fate and thoughts of J. Karnan. The Supreme Court has gagged the Press to protect itself from scrutiny over the J. Karnan matter. 

Sunday, April 23, 2017

Does the tax on sanitary pads in India amount to discrimination by the Indian State against women?

The following post is n response to the blog post by Gautam Bhatia titled "Does a tax on sanitary pads violate Article 15(1) of the Constitution?" at https://indconlawphil.wordpress.com/2017/04/22/does-a-tax-on-sanitary-pads-violated-article-151-of-the-constitution/comment-page-1/#comment-5111

I agree that taxing sanitary pads is discriminatory toward women. However, I would invoke Article 14, Article 15(1) and Article 21 to argue this point. 

Also, Gautam Bhatia's very well-intended discussion of this while very appreciable, labors a bit too much in my opinion, on countering objections that to my mind are objections which are not very convincing to begin with. 

I would put the case like this. Sanitary pads are essential items for menstruating girls and women and the majority of Indian girls and women need to use them for at least 40-45 years of their lives. These are not luxury items but are indispensable for a menstruating female to live with dignity and to participate in human activity and in family and social life. A housewife needs these as much as a schoolgirl as much as a woman who goes out to work and as much as a woman farmer, etc. 

In the 21st century, the right to access and use sanitary pads could well be considered a human right of all women. 

Sanitary pads are also an essential item for reproductive health and overall health and again this will invoke the Article 21 right to life argument. 

Now why does the State exempt goods from tax. If one looks at the list at http://allindiantaxes.com/pdf/23123da1.pdf and probably if one checks the relevant notifications etc., one of the reasons is to exempt those goods that are indispensable for the poor to survive. The State acts as a welfare State here and refuses to tax those goods that are essential for the poor to survive.

Also certain essential items related to human activity are exempt. 

Thus agricultural implements, handicapped aids, bread, charcoal, condoms and contraceptives, electricity, human blood, indigenous soap, newspaper, meat, grains, rakhi, salt, semen, sugar, seeds, textiles, tobacco, toddy, water, clay idols etc., are all exempt from tax. 

The intent behind notifying an item as tax free in such cases appears to be an intent to not burden the consumer with tax because of the nature of the item and its perceived indispensability/ significance to the user or because the State does not want to discourage its use by taxing the item. In these cases, the rationale is to keep the item cheaper for the consumer. 

In some other cases, the rationale is to not burden the manufacturer. 

Now I would argue that sanitary pads are essential for a woman's right to live with dignity and with freedom and also for her overall health, not just reproductive health. A sanitary pad is as essential as condoms and contraceptives. In fact a sanitary pad is more essential as there is no element of choice in the needs for sanitary pads. A man may or may not choose to have sex, but a menstruating woman has no control over her periods. 

I would argue that by failing to apply the same criteria to sanitary pads as to these other items listed above, the State is failing in its duty to treat women with equality and is discriminating against women. 

I would place data and facts before the Court, pointing out how the usage of sanitary pads in India is still very low as compared to other more developed countries. I would show how lack of access to sanitary pads is responsible for the deterioration in the quality of life for girls and women. How it adversely affects their dignity, their freedom, their physical and mental health, their confidence, their self-esteem, their participation in education and in the work force, their ability to travel and move freely, their ability to participate in physical activity, etc. I would use data to show that the high cost of sanitary pads is a factor for their low usage in India. 

I would in fact argue that the State needs to go further and subsidize sanitary pads in India. These should also be distributed free in schools and to other needy women. 

Saturday, February 18, 2017

Every accused including Shahbuddin deserves a trial at which he is physically present

The Supreme Court Judgment on 15 February 2017 forcing a video trial on Shahbuddin by transferring him to Tihar jail appears to violate his fundamental right to a fair trial, and to a trial in which he can participate fully. Being physically present inside the court-room is very different from being linked by video conference. In the latter situation, the jail authorities can essentially control when the accused can speak up in Court. His physical condition might also not be fully apparent to the Court and to observers present in Court. The State can misuse a video trial to deprive an accused of his right of full participation. The accused also has the right to observe court proceedings. An accused who is not present in the court-room cannot observe the judge, the witnesses, the lawyers, and everything else that happens in the court-room. 

It is the job of the State to ensure a fair and open trial, and the accused ought not to be deprived of his defence rights because the State fails in its duty to provide a fair trial and to maintain law and order. 

The Supreme Court should also have transferred the trials to Delhi. 

The SC judgment cites the Subramanian Swamy defamation judgment and the balancing of rights doctrine which is a problematic doctrine and the way in which it is applied in Shahbuddin's case is also troubling. 

In its decision, the SC also claimed that it could restrict Shahbuddin's fundamental rights under its broad and inherent powers to do justice. This is another position that the Supreme Court is increasingly adopting and the legitimacy of this position of the Court needs more analysis. 

The judgment can be found at http://supremecourtofindia.nic.in/FileServer/2017-02-15_1487136730.pdf

Saturday, February 11, 2017

Disturbing order from the Bombay High Court impugning a child sexual abuse victim

A woman judge of the Bombay High Court granted bail to an adoptive father accused by the adopted girl of prolonged child sexual abuse. The order dated 16th January 2017 disturbs and shocks in how it treats the complaint of child sexual abuse within an adoptive family and in how it labels the child victim as unnatural, as someone with deviant sexual instincts, and by implication as someone who cannot therefore be a victim of sexual abuse. 

I take no issue with the grant of bail to the accused father pending trial. But as I point out below, the Court has without evidence and before trial and without even hearing the victim both judged and condemned the child victim as a sexual deviant who cannot be believed and whose aberrant and dangerous sexuality needs to be policed by the State by housing her in a custodial shelter even as an adult. 

The facts that emerge from the order are as follows. The girl's mother was HIV positive and died in 2006 in a hospital. The girl who at that time was 9 years old or younger was abandoned in a Church compound and ended up in a Christian missionary institution in May 2006. 

The Court order reveals that after admission to this "protective home" the girl at the age of 9 described her life history in a hand written note as requested by the supervisor of the home. Apparently the note disclosed that the girl had been exposed to sexual activity and/or that the girl was sexually aware and/or sexually active even at the age of 9. 

The Bombay High Court Judge read this note written by the girl aged 9 (which is not reproduced in the order) and on that basis proceeded to condemn the child in these terms: 
"Perused the statement written in the handwriting of the prosecutrix. She has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instincts rights from her childhood, in all probabilities, because of the environment and atmosphere where she lived and the conduct of her deceased mother". 

Paragraph 3 of the bail order appears to reproduce some facts. The order does not disclose exactly where the Court gets these facts from. The order states that the supervisor of the protective home observed unnatural behavior in the 9 year old girl, she received "several complaints from other inmates about the girl, and after that the supervisor of the home spoke to the girl, and (again in the uncorroborated) words of the Court "found that she had an unwarranted and unnatural behaviour". Note that the Bombay High Court did not examine the supervisor of the protective home who interacted with the victim more than 10 years ago, when the girl was aged 9. 

Paragraph 3 also suggests that after interaction with the 9 year old girl, the protective home did not inform the Police of the likely sexual abuse and exploitation that the child appeared to have undergone, and neither did the protective home have the child examined by a psychiatrist or by an expert on child sexual abuse. 

Instead it appears as if the protective home washed its hands off a disturbed and probably sexually abused girl-child by hurriedly giving up the child in adoption to a woman who knew the girl's mother and to her husband. The adoptive parents were apparently made aware of the girl's "abnormal behaviour" and the order records that the wife was "hopeful" that the child would improve her behaviour after getting love and education. Once again the Court order does not disclose where it obtains these facts from. It is also unclear if this was a legal adoption or if the child was simply handed over to this couple. 

In her complaint made to an NGO when she was 17 years old, the girl disclosed that her adoptive father had begun to sexually abuse her when she was in class VI, i.e., from when she was around 12 or 13 years old; and that he continued to sexually abuse her until she was around 17, when she spoke out using a phone help-line for children run by the NGO.  

The Bombay High Court decision goes on to declare, without a trial, without examining the girl or other witnesses, and at the stage of hearing a bail application, that the statement of the girl does not appear to be truthful and "does not inspire confidence of this Court". The only basis for this conclusion is the Judge's finding that the child was "inherently abnormal and had sexual instincts rights from her childhood" and this is based solely upon the note written by the girl at age 9. The Bombay High Court then proceeds to grant bail to the father. Note below the reasons that the Court cites for granting bail. 
(i) The victim was 17 years old when she complained and there was a delay. i.e. a considerable lapse of time after she was allegedly first abused by her father. 
(ii) The victim did not complain to the supervisor of the protective home. 
(iii) The statement of the victim does not appear to be truthful. 
(iv) The accused is in jail for 15 months, the investigation is complete, the charge-sheet has been filed. 
(v) The victim is in the "protective custody" of the State in another protective home where she has been lodged because of her "abnormal behaviour" even though she is now an adult. 
(vi) The accused is entitled to bail because of the history of the victim. 

I reiterate that the objection is not to the Court granting bail to the father. An accused is entitled to bail especially after the investigation is complete and if the accused is not likely to obstruct the trial or destroy evidence or intimidate witnesses, etc. 

But the objection is to the "determination" by the Bombay High Court that the victim was a sexually abnormal child and is now a sexually abnormal woman, who cannot be believed and who cannot have been sexually abused. The Court refers to the investigation papers; to the note written by the girl aged 9; and to a statement by the supervisor of the protective home where the girl ended up at age 9 and which handed her over to the man, now accused of sexually abusing her over a period of 4-5 years when she was in his custody and living in his home. The Court did not speak to the victim who was probably not even produced before the Court. We never learn what kind of abnormal sexual behaviour the girl (and now the woman) exhibited. But the girl did live in this family for 8 years and possibly also attended school. How socially aberrant can her behaviour have been that requires her to be locked up in the State's protective custody even as an adult and even after the father is released on bail. And how aberrant is her sexual behaviour if she was aware of the fact of her sexual exploitation and sought the help of a child protection NGO to fight back. 

The Bombay High Court has grievously erred in this case. It ought to have sought the opinion of a psychiatrist specializing in child abuse. The girl seems to have spent her early years with her mother where she was exposed to sexual activity and very likely was also sexually abused herself or was groomed for sexual exploitation. Her mother's circumstances or occupation are unknown. There was no natural father in the picture. Abandoned, the 9 year old ended up in a missionary-run protective home, where the supervisor learnt about the signs pointing to previous sexual abuse of this child, but did not report the matter to the Police. The child did not get access to any specialized psychiatric care for abused children nor was she medically examined for sexual abuse. Instead, the protective home hurriedly got rid of a difficult child by handing her over to a family that was probably not vetted properly. In what capacity did the adoptive mother know the child's real mother? Were the adoptive parents aware of the circumstances of the child's likely sexual abuse before she arrived at the missionary-run protective home at age 9? Was the adoption a convenient solution by the protective home to a potentially disruptive situation involving the Police if the child had continued at the protective home? 

It was both insensitive and improper of the Bombay High Court to describe a 9 year old child's disclosure of sexual knowledge and/ or activity as "dirty things" or as abnormal behaviour. Sexual behaviour or sexual knowledge in such a child would suggest the likelihood that the child was either abused herself or was being groomed for abuse. Such a child would be even more susceptible to further sexual abuse because of her distorted sense of self and of appropriate adult-child relationships. She would therefore require specialized counselling, a safer environment. and protracted supervision of her environment to ensure that she is not exploited further. Instead, this 9 year old child was let down terribly by the protective home and by the State. 

One must ask what possible conduct in a 9 year old child in a protective home could be called "dirty"? Did the child talk about sex? Did she describe sexual activity? Did she physically expose herself? Did she masturbate? What possible sexual conduct of a 9 year old girl would render her liable to be labelled an inherently abnormal sexual deviant for life? Or labelled as a female with abnormal sexual instinct? The concerned Judge of the Bombay High Court who reached these conclusions should be directed to read some books on child abuse and to attend a course run by professionals who work with child abuse victims. 

This girl lived with her adoptive family for 8 years. There is nothing to show that the parents considered her behaviour abnormal during these 8 years. Did they ever seek counselling for her? Did she attend school? What was her behaviour like in school? If her behaviour was so abnormal, then surely the school would have raised the issue. 

Yet, after the girl speaks out at age 17 that her adoptive father has sexually abused her for the last 5-6 years, she suddenly becomes such a threat to society because of her "abnormal" sexual behaviour that she has to be confined in a protective home even as an adult.  

And why is the Judge surprised that a child victim of sexual abuse (within the family) that starts at age 12-13 waits until age 17 to speak out. Is this not common and entirely explicable? And how could and why would a 13 year old child living in the custody of her adoptive parents at their home approach the supervisor of the protective home that handed her over to the same parents at age 9? What reason would such a child have to trust or approach the supervisor? Why does the Judge not appreciate the difficulty such a child would have in speaking out especially if she had a distorted sense of self because of earlier sexual abuse and against a parent who exerted power over her and who allegedly exploited her distorted sense of self for his own sexual gratification? 

And why does the Judge not question the need for the adult victim to be housed in protective custody because of what the Judge assumes is her "abnormal behaviour". What kind of "abnormal behaviour" requires an adult woman to be locked up. The Bombay High Court sets the male accused free. He will get a trial and a hearing. But the female victim is locked up ostensibly for her own good and without recourse to any hearing or trial? Has the woman undergone any psychiatric examination? Why is she in custody? What has she done that makes her adult sexual behaviour abnormal? Given the recent news reports on the horrors of State run welfare and protective homes in India (see the Asha Kiran expose), is housing her in such a State-run protective home in her best interest.  

The Bombay High Court has not only violated well established principles of bail law, child protection law, and sexual offences law in its order, but it has also condemned the child sexual abuse victim as a liar and as sexually abnormal and it has done this without even hearing her. This Bombay High Court order destroys the life and reputation of this girl forever. Someone needs to challenge this order before the Supreme Court of India even if the State won't. The order should be challenged not on the issue of grant of bail to the accused, but because of the defamatory statements made by the Judge about the victim, which will not only prejudice the trial, but which wrongly label this young woman as sexually deviant and dangerous. 

The Bombay High Court order is yet another example of how the Law, Indian judges, the Indian police and the criminal justice system approach the issue of the sexual past of a victim of sexual crime; of how female victims are often painted as liars; of how the paternalistic State steps in to police female sexuality; and of how inconvenient women are simply removed from society and incarcerated in protective homes ostensibly for their own protection, but where they languish forgotten until they die.



The Bombay High Court order can be read at https://drive.google.com/file/d/0BzXilfcxe7yudGlDSHZ0djVydHM/view

Monday, January 2, 2017

The Supreme Court should have struck down restrictions on free speech during election campaigns

Several Supreme Court of India decisions from its early years need reconsideration. Some of these are on fundamental rights and on the constitutionality of restrictions on these rights. For instance the Supreme Court's 1980 ruling in Shri Krishna Singh versus Mathura Ahirthat that personal law is immune from challenges on the ground of violation of fundamental rights requires reconsideration and fortunately might be reconsidered in the pending triple talaq case. 

Similarly the ruling in Jamuna Prasad (1954) that Section 123(3) of the Representation of the People Act does not violate the right to free speech under Article 19(1) is also wrong in my opinion. The Abhiram Singh case which the Supreme Court decided on 2 January 2017 is a missed opportunity to reconsider and over-rule Jamuna Prasad on this very important issue of restricting free speech during election campaigning where unarguably there is the greatest need for freedom of speech. 

Section 123(3) prohibits the following kind of speech by defining it as a corrupt electoral practice: 
“The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

Both the Shri Krishna Singh and the Jamuna Prasad rulings were cursory and un-reasoned in their dismissal of these significant constitutional challenges. 

The Supreme Court stated in Jamuna Prasad regarding Section 123(3):
“These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.”

In upholding the constitutional validity of Section 123(3) of the Representation of Peoples Act, the Supreme Court failed to apply the mandatory test of reasonable restrictions under Article 19(2) of the Constitution of India. This is the constitutionally mandated and the only test to ascertain the constitutional validity of a freedom of speech restriction. And for this reason alone, the decision in Jamuna Prasad is unsatisfactory and requires reconsideration.  

The problem with Abhiram Singh in 2017 seems to have been that the reference to the seven Judge Bench was on a very narrow question of the interpretation of Section 123(3) whose constitutional validity was presumed. The Court therefore had no reason to re-examine the issue of the constitutional validity of this section qua Article 19(1)(a). The fault lies with the lawyers engaged in this matter who ought to have attempted to re-open the issue of the constitutional validity of this provision. 

Justice Chandrachud in the minority dissenting judgment in Abhiram Singh attempts to preserve some aspects of the Article 19(1)(a) right by stating that:
"However, the statute does not prohibit discussion, debate or dialogue during the course of an election campaign on issues pertaining to religion or on issues of caste, community, race or language." 

Abhiram Singh in 2017 is not only a missed opportunity but it further entrenches the questionable legal position laid down in Jamuna Prasad in 1954. A single unsatisfactory paragraph in the 4 page judgment in Jamuna Prasad which fails to apply the mandated Article 19(2) test to Section 123(3) now stands unchallenged and hence affirmed by a seven Judge Bench of the Supreme Court of India. 

The end result is a very significant and I would argue unconstitutional restriction on free speech in the most important event in a democracy - elections. It also restricts the rights of citizens to influence and change the direction of the Indian Republic and the Constitutional text through peaceful means, i.e., by participating in the democratic process of elections. 

The Supreme Court's ban on electoral identity politics in India ignores the fact that mobilization as a group around identity is a political response necessary to counter historical hierarchies, discrimination, injustices and systemic inequalities which are based upon such identity. Access to resources and opportunities is often determined by religious, caste, ethnic, linguistic and gender identities in India. Political mobilization around caste identities in India has led to political, social and economic empowerment for the historically disenfranchised so-called lower castes. Mobilization around identity creates political voice for the marginalized and leads to healthy outcomes like affirmative action and progressive social change. The majority has an equal right to mobilize politically and our Constitution contains safeguards to protect the minorities from unconstitutional majoritarian demands. Identity based politics is also a necessary precondition for the realization of the universally accepted human right to self-determination. The Court will also find the Abhiram Singh decision impossible to implement. The decision will prove disruptive to election processes and outcomes and will result in more frequent legal challenges to election victories. 

As Prashant Jha points out in his excellent piece in the Hindustan Times, religious identity is an important component of public and social life in India and it cannot be simply dictated away by judicial pronouncement. The Supreme Court's decision is an unwelcome interference in electoral democracy. Hate speech laws already exist to tackle any gross invocation of religion that incites hatred. And political battles over identity in a pluralistic, multi-cultural country like India can only be resolved politically. Jha writes:
"Society’s cleavages will express itself in politics. ...Indian electoral democracy will evolve on its own. Not all its practices may be palatable to us - but imposing artificial bans will not address the impulses which lead to the use of certain categories in politics in the first place." 


It is unfortunate that none of these arguments in favor of identity politics find mention in the Supreme Court's majority ruling in Abhiram Singh. That the majority opinion of the seven Judge Bench penned by J. Lokur failed to even relook at the crucial unconstitutionality argument reflects negatively on the lawyers who argued the case. Why was this argument not pressed? Criticisms of the Supreme Court in failing to uphold fundamental rights and freedoms are now common. But what is still not being pointed out is the failure of the elite, insular and fenced-in Supreme Court Bar in fighting for these liberties and rights. The Supreme Court Bar with its multiple access restrictions, with all its senior advocate privileges, with its celebrity senior advocates, and its advocate-on-record restrictions has unfortunately (since the 1990s) not lived up to its role in advancing a more positive development of constitutional law and fundamental rights jurisprudence in India.

Sunday, December 25, 2016

The Supreme Court's incorrect ruling on new beards for Muslim men in the Air Force & on how the law could evolve

In its judgment dated 15 December 2016 in Mohammed Zubair's case, the Supreme Court has ruled that the Indian Air Force was justified in disallowing a Muslim man to keep a beard and in discharging him for persisting in keeping a beard without permission. 

Reading news reports on this decision, my first thought was that the Supreme Court reached the correct factual conclusion in this case. Regulation 425 talks about a religion prohibiting the cutting/ shaving of facial hair. Now while Sikhism does prohibit this, Islam does not. The majority of Sikh men retain facial hair while the majority of Muslim men shave it. This is a fact. The fact that this dispute arose in a military context is also important. Joining the military does make military regulations paramount over several individual rights which might not happen in normal civilian life.

However after going through the complete judgment and the reasoning of the court, it is clear that the facts and issues before the court were more complicated and the Supreme Court decision is incorrect. 

Regulation 425 is from 1964. It reads: 
“425. Growth of Hair etc. by Air Force Personnel.
(a) Except as in sub para (b), the hair of the head will be kept neatly cut and trimmed. The hair of airman under detention/sentence will be cut no shorter than is customary/ throughout the service except on medical advice and except where on an application made by the airman he has been permitted to keep long hair. Face will be clean shaven. Whiskers and moustaches, if worn will be moderate length.
(b) Personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard. However, such hair and/ or beards will be kept clean, properly dressed and will not be removed except on medical grounds or on application duly approved”.

The Air Force has over the decades clarified on the interpretation and enforcement of this regulation in several communications which the SC erroneously describes as "policy" documents. Thus in 1980, in 1982, and in 1999, the Air Force expressly stated that Regulation 425 applied to Muslims who wanted to sport beards. Muslim men could maintain beards if they had them at the time of enrollment or if they were given express permission after an application to maintain a beard. 

In 2003 when the BJP led NDA government was in power, the previous policy was revised. 

The new 2003 policy allowed Sikhs to sport beards. Muslim men however could only maintain beards if they had them "at the time of commissioning/ enrolment prior to 01 Jan 2002"  The new policy stated "Muslims who have grown beard after joining service should shave off the beard." 

A clarification was later issued in 2003 stating that Muslim men who had received prior permission could also keep their beards. And Muslim men who had beards at the time of enrollment could also keep these. 

The effect of the policy seems to be that with effect from 9 June 2003, Muslim enlisted men cannot ask for or receive permission to grow new beards. 

It is unclear if bearded Muslim men can enlist after this date. I would think they can. 

Muhammed Zubair joined the Air Force in 2001 without a beard. In 2005, he asked the Air Force for permission to grow a beard on the ground that he was a Muslim. This permission was denied. He refused to shave his beard and was eventually discharged by the Air Force. He was before the Supreme Court challenging this action of the Air Force. 

The Supreme Court does not really address the issues that arise from the above. The judgment skirts these issues by saying that regulation 425 prevails over "policy" documents and that the latest policy from 2003 would prevail. The Supreme Court also suggests that the reason for the change in policy in 2003 was to ensure that enlisted men could be identified so as to prevent infiltration. 

What the Supreme Court failed to consider is whether it is unequal and arbitrary to allow some Muslim Air Force personnel to sport beards on religious grounds while denying other Muslim Air Force personnel the right to do the same. 

The issue of the need to identify air force personnel can be addressed in other ways as the judgment itself notes and that alone cannot justify this arbitrariness. 

The Supreme Court's reasoning is weak. It states that the object and purpose of the Air Force regulation "is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union." Therefore according to the Court, the Air Force was justified in preventing Zubair from growing a beard. What the Supreme Court ignores is that until 2003 the Air Force permitted enlisted Muslim men to grow new beards subject to permission, and that even today the Air Force continues to allow a defined category of enlisted Muslim men to sport beards. Therefore the reasoning of the court that those Muslim men who enlisted (without beards) in the Air Force after 2003 cannot grow new beards because this would interfere with the "uniformity, cohesiveness, discipline and order which are indispensable to the Air Force" is faulty. 

In paragraph 10 of the judgment, the Supreme Court appears to suggest that Islam does not mandate a prohibition on the cutting or shaving of facial hair. The court also states that Mohammed Zubair failed to establish his own religious belief that shaving his facial hair was prohibited. While Islam might not mandate beards for men like Sikhism does (see Are beards obligatory for devout Muslim men?
and The relationship between Muslim men and their beards is a tangled one ), Mohammed Zubair did come around to the belief that his religion required him to keep a beard and this belief was certainly important enough for him to enter into prolonged litigation with the Air Force (his employer) and for him to refuse to shave his beard even at the risk and ultimate consequence of discharge from the Air Force. Further as argued above, the Air Force until 2003 itself permitted Muslim men to retain beards and grow new beards and even after 2003 the Air Force continues to permit Muslim men to retain old beards, on the basis that these beards were/are part of religious beliefs. And therefore the issue before the court was also one of arbitrary discrimination between and unequal treatment of two separate classes of Muslim men enlisted in the Air Force, which issue the Court failed to note and address. 

Finally the discussion in paragraph 10 of the Supreme Court decision in this case is noteworthy because it touches upon the Court's evolving jurisprudence on the 'essential religious practices test' and the issue of community based claims versus individual based claims to religious practices and beliefs. This distinction will be eventually important for how the Supreme Court continues to resolve the issues arising from potential conflicts between two distinct fundamental rights - the fundamental right to practice religion and the fundamental right to manage religious affairs. Until recently, the Supreme Court's jurisprudence on the right to religion centered on community rights. However the distinction between community based claims and individual based claims to religious practices and beliefs has more recently assumed significance before the Supreme Court in litigation where an individual challenges or rejects a community imposed religious practice and seeks to enforce his or her fundamental right to practice religion against the community’s claims to manage religious affairs. The Sabarimala, Haji Ali and triple talaq cases are interesting examples of such conflicts between individuals and their religious communities viewed as a monolith. (In reality, religious communities are also often fragmented into factions on important issues that impact people's rights). Another interesting situation of such conflict would be the concept of excommunication. Can the concept of excommunication survive if the Court were to uphold an individual’s right to practice his or her religion according to the individual’s own conscience. This is the direction that progressive thinking might lead to – that an individual’s right to practice his or her religion according to the individual’s own conscience would prevail over community dictated religious practices, with the caveat however that the individual cannot in this freedom claim a right say, to desecrate a temple. And with the further caveat (in the context of the Sabarimala and Haji Ali litigation) that women entering public places of worship cannot be viewed as desecrating those places.

Sunday, November 20, 2016

Why Narendra Modi's Demonetization measure violates the RBI Act and creates financial anarchy

Why Narendra Modi's Demonetization measure violates the RBI Act and creates financial anarchy
- by Seema Sapra

The Demonetization measure dated 8 November 2016 is a notification issued by the Government of India under Section 26(2) of the Reserve Bank of India Act 1934. The Demonetization notification is not only a fraudulent exercise of power but is also ultra vires Section 26(1) and Section 26(2) of the RBI Act. 

Section 26 of the RBI Act reads: 
26. Legal tender character of notes.
(1) Subject to the provisions of sub-section (2), every bank note shall be legal tender at any place in [India] in payment or on account for the amount expressed therein, and shall be guaranteed by the [Central Government].
(2) On recommendation of the Central Board the [Central Government] may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender [save at such office or agency of the Bank and to such extent as may be specified in the notification]. 

The Demonetization notification can be read at http://finmin.nic.in/172521.pdf

Let us examine the violations of Section 26(1) and (2) by the demonetization notification. 

Under Section 26(2) the Government of India (GOI) can only demonetize "any series of bank notes of any denomination" at a time. The GOI with its demonetization notification has overnight demonetized two entire denominations of bank notes worth about 86% of the currency in circulation in India. The scale of the demonetization extending to 86% of the currency and its temporal immediacy (a mere 4 hour notice period issued at 8 pm on November 8) renders this measure a violation of the legal tender guarantee of the GOI under Section 26(1) of the RBI Act. 

The power under Section 26(2) has to be exercised for justifiable and valid reasons which would be subject to judicial review. Further the measure adopted must be reasonable and must be commensurate with and proportional to the objective sought to be achieved. It should not cause excessive financial, monetary, and economic disruption, loss and hardship that could have been avoided and which is not necessary to achieve the legitimate objectives of the exercise of power under Section 26(2). 

Modi's demonetization notification claims to have three objectives. These are reproduced below: 
"And whereas, it has been found that fake currency notes of the specified bank notes have been largely in circulation and it has been found to be difficult to easily identify genuine bank notes from the fake ones and that the use of fake currency notes is causing adverse effect to the economy of the country;
 And whereas, it has been found that high denomination bank notes are used for storage of unaccounted wealth as has been evident from the large cash recoveries made by law enforcement agencies;
 And whereas, it has also been found that fake currency is being used for financing subversive activities such as drug trafficking and terrorism, causing damage to the economy and security of the country and the Central Government after due consideration has decided to implement the recommendations of the Board;" 

It is submitted that out of the three statements of objectives and purposes of the notification, it is only the fake currency issue that can amount to a valid reason for the exercise of the demonetization power under Section 26(2) of the RBI Act. It is further submitted that the demonetization notification is arbitrary and unreasonable in law and ultra vires the statute as the measure adopted is far in excess of what the GOI needed to do to counter fake currency notes. The statement in the notification that "it has been found to be difficult to easily identify genuine bank notes from the fake ones" is factually incorrect and seems to have been included with malafide intent. There can be no justification for the withdrawal of legal tender character from 86% of currency in circulation merely to target the less than 1% of fake currency in circulation. Less extreme and less restrictive measures were available to the GOI to address the fake currency issue.  

It is important to understand that there is no legal bar on Indian citizens keeping their wealth and legitimate earnings in cash if they so desire. Therefore cash does not ipso facto equal black money. Further, demonetization cannot be used as a tax enforcement measure. The RBI is not a tax authority. Therefore demonetization cannot be justified in law for the second reason mentioned in the notification. Demonetization also cannot be a money laundering measure. The Demonetization notification in so far as it seeks to justify itself as an attempt to tackle tax evasion or money laundering is illegal and issued without authority of law. Withdrawal of legal tender character from bank notes for the purpose of addressing tax evasion or money laundering does not fall within the ambit of Section 26(2) of the RBI Act. The Demonetization notification is bad in law as it targets all citizens indiscriminately and without due process of law. 

Modi's demonetization measure is not bold; its foolhardy with grave long-term consequences. The Government of India intends to default on its debt, owed not to a foreign sovereign or foreign bank, but owed to its own citizens, both rich and poor. Nobel laureate, and Economics Professor Amartya Sen has called the demonetization measure a “despotic action” betraying the “authoritarian nature" of the Modi administration. Sen aptly captures the enormity and capriciousness of Narendra Modi's reckless gamble with the most solemn of promises by a Central Bank - to honor its promissory notes to its citizens. He states:  
“Telling the public suddenly that the promissory notes you have, do not promise anything with certainty, is a more complex manifestation of authoritarianism, allegedly justified — or so the government claims — because some of these notes, held by some crooked people, involve black money. At one stroke the move declares all Indians — indeed all holders of Indian currency — as possibly crooks, unless they can establish they are not.”

US economist and former Secretary of the US Treasury Lawrence Summers has called this measure expropriation which has not only caused chaos in India, but also a "loss of trust in government". He points out the moral and ethical problems with such indiscriminate targeting of 85% of the currency when he writes: 
We recognize that many of those who hold large quantities of cash in India have come by their wealth in corrupt or illegal ways. So, the temptation to expropriate is understandable. After all, as the argument goes, anyone who came by their wealth legally has nothing to fear from coming forward and exchanging old notes for new ones.
Most free societies would rather let several criminals go free than convict an innocent man. In the same way, for the government to expropriate from even a few innocent victims who, for one reason or another, do not manage to convert their money is highly problematic. Moreover, the definition of what is illegal or corrupt is open to debate given commercial practices that have prevailed in India for a long time."

Statements made by Prime Minister Narendra Modi, Finance Minister Arun Jaitley and by the Attorney General Mukul Rohatgi on the demonetization measure establish that the demonetization notification has been issued by the GOI with the intent to expropriate money from its citizens without due process of law. The Modi administration is celebrating the fact that they expect large amounts of the now demonetized bank notes not to be deposited in banks or exchanged with new currency. This establishes the intent of the GOI to expropriate money from citizens without the due process of law. Statements from the Finance Minister Arun Jaitley suggest that the GOI will use this expropriated money to bring down its fiscal deficit in the Union budget. 

The Modi administration is also calling the demonetization a success because of the large deposits of demonetized bank notes in banks since 8 November. The Attorney General Mukul Rohatgi defended the demonetization measure as a "success" in legal proceedings before the Supreme Court of India by stating that 6 lakh crore Rupees had been collected till date and that therefore “Banks will be flush with money and lending rates will come down”. This statement needs to be understood in the context of the large debt burden of public sector banks in India on account of bad loans to corporates and the imminent banking crisis in India because of the scale of the non-performing assets of India's Government owned banks. The total amount of Gross Non-Performing Assets (NPAs) for public and private sector banks stood at around Rs. 6 lakh crore in June 2016. The Government of India needed to recapitalize its PSU banks to stave off a full-blown banking crisis. Even though the demonetization notification does not mention this, it does appear as if the Modi administration did expect the demonetization to result in enough money flowing into the PSU banks so as to obviate the need for the GOI to recapitalize the banks, which would have budgetary consequences for the fiscal deficit. The fact that the demonetization notification itself does not mention bank recapitalization as an objective is because this is impossible to justify both legally and morally. Looking at the demonetization measure as a bank recapitalization measure also helps explain why the Modi administration has placed illegal limits on citizens' rights to withdraw and spend money from their own bank accounts. 

Savings of the poor and middle class are being used to offset the debt write-offs of bad bank loans given to corporates. The Modi Government has refused to name the worst bank defaulters. A mere 57 defaulters owe Indian banks Rs 85,000 crores, yet the GOI does not want to publicly identify these entities and individuals. Why? Just days after the demonetization notification, the State Bank of India wrote off Rs 7,016 crore worth of loans owed to it by 63 wilful defaulters. Now it has emerged on 18 November, that the State Bank of India will provide a loan of $ 1 billion (over Rs 6,000 crore) to Adani Mining for its controversial mining project in Australia. This project is of no benefit to India. Why should an Indian PSU bank fund it? Is Adani in the list of existing bank loan defaulters? It is well known that Modi has close ties to Adani. The new Adani State Bank of India loan will not be possible without the demonetization measure. It is therefore obvious that the Modi Administration is using the demonetization measure to transfer wealth from the poor and the middle class to corporates and to the GOI. 

The Government of India has also cluelessly violated Section 26 of the RBI Act by allowing for several exemptions to the legal tender status of the cancelled bank notes. Once the GOI notifies under Section 26(2) that any bank note series has ceased to be legal tender, Section 26(2) itself mandates that such bank notes can only be exchanged at an agency or office of the RBI as notified. The GOI has no power to thereafter permit such demonetized bank notes to be used for some select transactions at Government outlets or petrol pumps, or at hospitals, or at airline ticket counters or to pay GOI dues, or for farmers to buy seeds, etc. These exemptions and rules are all ultra vires Section 26(2) and amount to an illegal and arbitrary exercise of power in violation of the Article 14 equality guarantee of the Constitution of India. The only way to describe this situation is financial anarchy. 

Further under Section 26(2) of the RBI Act, the GOI does not have the power to place limitations on cash withdrawals by citizens from their bank accounts or from ATMs. The notification in so far as it places these restrictions is ultra vires Section 26(2) of the RBI Act. Such limitations are illegal. 

Similarly, under Section 26(2) of the RBI Act, the GOI does not have the power to limit the amount of demonetized bank notes that citizens can exchange at the RBI in cash. The notification in so far as it places these restrictions is also ultra vires Section 26(2) of the RBI Act. 

There is also a larger question of whether the demonetization notification is a fraudulent exercise of power in that the news of the proposed measure was selectively leaked in advance and whether therefore the notification has the hidden agenda of influencing imminent elections in India and targeting Narendra Modi's rivals and detractors. There is mounting evidence that news of the demonetization measure was selectively leaked out. The demonetization notification issued under Section 26(2) of the RBI Act is also issued upon the recommendation of the Central Board of the RBI. Now the RBI Central Board has representatives from private industry. Under RBI rules, the Central Board members must be given advance notice of Central Board meetings and agenda. Therefore how can the GOI claim that the demonetization announcement was kept secret? This completely destroys the GOI argument that the need for secrecy is the reason for the Government's unpreparedness in dealing with the consequences of the notification which has created an artificial currency shortage in the country and which is adversely impacting people's daily lives and work and economic activity.

The unprecedented, misconceived and fraudulent demonetization notification of the Narendra Modi Government is nothing but the declaration of an unannounced financial emergency. It has eroded public trust in the Government of India and its legal tender guarantee. It smells of a scam and there is no transparency about how and why this action was taken by the Government of India. Who was consulted? What are the real reasons for the demonetization notification? Narendra Modi has called his demonetization measure a revolutionary step. As Pratab Bhanu Mehta warns us the Modi years ahead portend a "permanent revolution" where "Law does not matter, form does not matter." What Modi forgets is that he heads a government 'limited' by the Constitution of India, and that revolutions do not feature in the constitutional scheme, the rule of law does. Narendra Modi's demonetization measure violates the law and this is not condoned by either popular support or by the perceived benefits being touted by the defenders of this measure. Modi's demonetization measure also fails on the risk management plank of prudent governance. Imagine if India were to be suddenly confronted by a big natural or a man-made disaster or if India were to face any external aggression during this period of Modi-induced weakness and instability. How would the country and people facing a scarcity of cash cope? Modi's reckless gamble has exposed the country and its citizens to unnecessary and imprudent risk.  An administration that has messed up so monumentally for all of the above reasons has no right to continue in power. Prime Minister Narendra Modi should step down from his office along with Finance Minister Arun Jaitley.