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.

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. 

Donald Trump's win explained by unraveling of the social and political consensus on "embedded liberalism" in the United States as a consequence of globalization

I think Trump’s win and the Brexit vote can both be explained as resulting from an unraveled social and political domestic consensus of “embedded liberalism” within the US and the UK respectively, as a consequence of globalizing forces. Trump’s win is the reassertion of political voice by those in the US who have been left behind by globalization and is the beginning of the search for a new social and political domestic consensus on “embedded liberalism”. We are entering a period of increased nationalism globally and this will eventually be followed by the creation of a new world order, if we don’t end up destroying the world with wars before that.

Many of Trump’s election promises are intended to get US policy to step back from globalization and to focus instead on domestic problems and issues. This would mean less US intervention abroad which at the present time would be good, given how destructive US intervention overseas has become.

The real fight in the 2016 Presidential election and its aftermath seems to be over who controls US policy and for whose benefit. Should US policy work for banks, multinationals like GE, oil companies, and large Defense contractors which have global interests now, or should US policy work for disenfranchised, poor and marginalized American citizens. This is what this election was about and why Trump won. But to what extent Trump will get co-opted by global corporate and military interests, we will eventually find out.

For more on the idea of “embedded liberalism” read The Great Transformation by Karl Polanyi and also John Ruggie on embedded liberalism at http://ftp.columbia.edu/itc/sipa/U6800/readings-sm/rug_ocr.pdf

And here is a more recent article by John Ruggie – The Principles of Embedded Liberalism: Social Legitimacy and Global Capitalism, Rawi Abdelal and John G. Ruggie at http://www.tobinproject.org/sites/tobinproject.org/files/assets/New_Perspectives_Ch7_Abdelal_Ruggie.pdf
which offers interesting insight into the origins of the issues which mattered in the 2016 US election and which led to Trump’s win. Trump’s shock victory is really a backlash against globalizing forces and an attempt by marginalized American citizens to wrest back control over US policy.

The US liberals or the Democrats as they call themselves are if anything even more hypocritical than the Republicans. The Republicans at least don’t lie to themselves and to others that US dealings with the rest of the world are not motivated only by greed and self-interest. This is why US liberal journalists paint Obama or Hillary as lesser threats to liberal values than Trump. The fact is that Obama and Hillary were far worse than anything they project Trump as capable of, except in two areas of only domestic concern – abortion and gay rights. And though a US President is relevant to US legal regimes on abortion or gay rights, I don’t think the deep state that was supporting Hillary cares much about either of these two issues. So, I don’t think the election in 2016 turned on either of these issues.

Another thing which is puzzling is the liberal (read Democratic) opposition to Trump’s positions on illegal immigration, the “wall” and greater terror related scrutiny on grant of visas. Why do the Democrats want and condone illegal immigration into the US, primarily from Mexico etc. Why are they against secure borders. Why did they not protest about how the US treated Muslims overseas and at home during Obama’s 8 years. Why are they so troubled instead by Trump’s statements that he would allow Muslims in only after a secure terror-based vetting process was in place. For most people in the world, getting a US visa is already subject to all kinds of vetting.

The Democratic party depends upon the Latino votes on the East and West coasts for power. Without the Latino vote, the Democrats would be politically weakened. Therefore, the Democrat stance on immigration is essentially a self-serving one which they need to adopt if they want to win elections and power. It is not an honest, objective position based upon respect for the US Constitution and rule of law.

I too had written about the idea of “embedded liberalism” in these three articles which are available on the internet.

Chapter titled ‘Domestic Politics and the Search for a New Social Purpose of Governance for the WTO: A Proposal for a Declaration on Domestic Consultation’ in Debra Steger (ed.) Redesigning the World Trade Organization for the Twenty-first Century, Wilfrid Laurier University Press, 2009

Chapter titled ‘New Agendas for International Economic Law Teaching in India: Including an Agenda in Support of Reform’ in Colin B. Picker, Isabella Bunn & Douglas Arner, (ed.) INTERNATIONAL ECONOMIC LAW – THE STATE & FUTURE OF THE DISCIPLINE, Hart Publishing, 2008

‘Ideas of Embedded Liberalism and Current and Future Challenges for the WTO’, in Ortino and Ripinsky, WTO Law and Process, British Institute of International and Comparative Law, 2007. pg 330 – 352

Why India should abolish the civil imprisonment of judgment-debtors

I address this issue in response to a post titled "The Bombay High Court’s S. 56 CPC Judgment and the State of Indian Sex Discrimination Jurisprudence" by Gautam Bhatia on his blog at https://indconlawphil.wordpress.com/2016/11/04/the-bombay-high-courts-s-56-cpc-judgment-and-the-state-of-indian-sex-discrimination-jurisprudence/

In my view, the entire concept of imprisoning a judgment debtor in the first place is unjust and an old-fashioned way of dealing with such a situation. I think Section 55 CPC itself needs review. The purpose of the law, i.e., to realize a debt owed can be achieved in other more effective ways that do not involve deprivation of personal liberty. Section 60 already provides for attachment and sale of property to realize the debt.

In fact if you look at the wikipedia entry on Debtors' Prisons, the entire concept of jailing people for a debt is being discarded by most liberal democracies, albeit slowly. Jailing people for debt is contrary to modern conceptions of human rights. 

Article 11 of the ICCPR, the International Covenant on Civil and Political Rights states, "No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation."

Article 1 of Protocol 4 of the European Convention on Human Rights prohibits the imprisonment of people for breach of a contract. 

The South African Constitutional Court in In re Farieda Coetzee v. Government of the Republic of South Africa (unreported, 1995), has ruled against the imprisonment of judgment debtors and has held that such imprisonment violates the right to freedom under the South African Constitution. See http://www.saflii.org/za/cases/ZACC/1995/7.html

I am also certain that empirical research will establish that it is almost always the poor who get jailed under Section 55. Section 55 contemplates arresting a judgment debtor who can then apply for insolvency to secure his release. How will a poor man in jail who has no money to satisfy a decree ever be able to afford/ organize a lawyer to be declared insolvent.

Also look at Sec 58. A man who owes Rs 501 can be jailed for six weeks, A man who owes Rs 1001 can be jailed for 3 months. Surely this law is archaic and not appropriate for the present times.

Going by this, Subrat Roy (Sahara) has served more time in prison than the maximum three months he could have been jailed for if there was an actual money decree against him.

So I do not agree with Gautam Bhatia that women should also get jailed for non-payment of a debt. Also in my view it is possible to argue that the overwhelming majority of Indian women face structural and institutional inequalities and discrimination that would justify section 56.

And similarly I also think that jailing someone for adultery in today’s age is archaic and an undue restriction of personal liberty. Divorce is a sufficient remedy for adultery. So I do not think that the law should also punish women for the crime of adultery. On the contrary adultery should be decriminalized for men as well.

The Supreme Court of India and the urgent need for reform of the criminal justice system

Here is my response to a blog post by Abhinav Sekhri titled 'Girish Kumar Suneja and the Exclusion of the High Court’s Jurisdiction in Anti-Corruption Cases' at https://indconlawphil.wordpress.com/2016/10/30/guest-post-girish-kumar-suneja-and-the-exclusion-of-the-high-courts-jurisdiction-in-anti-corruption-cases/

Abhinav Sekhri raises some very important issues. The criminal justice system in this country is in serious need of reform, yet the Supreme Court has not really pushed for a reform process. Instead, the Indian judiciary has in select cases involving politically connected or high value accused, bypassed the criminal justice rules and procedures applicable to all, and has created specialized investigation, prosecution and trial processes (even special courts) for such "sensitive" cases on a case to case basis. This has been justified by the courts as being necessary because the investigation, prosecution and trial stages of our criminal justice system can be easily compromised by the powerful and influential. 

Yet, the specialized processes created not only violate procedural and substantive rights of the accused and the complainants but may be even more prone to being compromised. 

Also, these kinds of special rules created for individual cases cause further systemic harm to the criminal justice system and act as an impediment to the initiation of a real reform process. 

This special treatment of the influential is happening not only in "sensitive" criminal investigations and trials. The black money, Sahara and the BCCI cases in the Supreme Court are also examples of a similar special handling outside the prescribed and applicable regulatory processes and institutions. 

In a just and fair criminal justice system, there must be a separation between the investigating and the prosecuting agencies and the judiciary. This principle is being completely demolished by such special handling where the Supreme Court is involving itself in monitoring investigations, in perusing and approving charge-sheets, in monitoring trials etc. How then can the Supreme Court hear appeals from such cases without bias? 

Read this news report on the sorry state of our criminal justice system – “Cops openly flout forensic norms, delay of over 10 days in sending samples to labs” at http://indiatoday.intoday.in/story/cops-flout-forensic-norms-samples-labs-police-station-delhi-state-legal-services-authority/1/798686.html?google_editors_picks=true

Can the Supreme Court of India stop using misogynistic & derogatory terms like concubine and "keep" for women who are in relationships as mistresses, lovers, partners, girlfriends, etc.

Indra Sarma vs V.K.V.Sarma SC 2013 is a terrible judgment replete with old-fashioned misogyny. A single woman entered into a live-in sexual relationship with a married man and they lived together for 18 years with her giving up her job and handling the household. The terms in which the judgment describes the woman and her action in entering into this relationship is judgmental and demeaning.

Here is an extract: 

"The appellant, admittedly, entered into a live-in relationship with the respondent knowing that he was a married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [(1928) 27 LW 678 : AIR 1927 PC 185] , that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasadv. Director of Consolidation [(1978) 3 SCC 527] and Tulsa v. Durghatiya [(2008) 4 SCC 520] .
We may note that, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. The long- standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that the DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.
Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage. [Paras 57, 59 & 64]”

This is such a regressive statement. Why does the Supreme Court still use the archaic and demeaning term concubine? We have had “concubines” as members of Parliament. There is so much that is wrong with this statement.

How does the Court presume monogamy in other live-in or married relationships?

Any long-term live-in relationship between a man and a woman in a sexual relationship should in my opinion fall within the purview of the Domestic Violence Act for certain purposes but perhaps not for all.

Our Supreme Court Judges should at least read the wikipedia entry on “Concubinage”at https://en.wikipedia.org/wiki/Concubinage so that they do not use this term again.

“While various forms of long-term sexual relationships and co-habitation short of marriage have become increasingly common in the Western world, these are generally not described as concubinage. The terms concubinage and concubine are used today primarily when referring to non-marital partnerships of earlier eras. In modern usage, a non-marital domestic relationship is commonly referred to as co-habitation (or similar terms), and the woman in such a relationship is generally referred to as a girlfriend, lover or (life) partner.”

The word concubine essentially used to mean a sexual slave or a socially and sexually subservient woman living with legal sanction in a man’s household shared with his legally wedded wife/ wives and occupying a lower status than the wives, It is not even an Indian concept. Why would our judges use this term?

Note also how the judgment solely blames the "other" woman (but not the man) for an 18 year old affair with a married man in para 24:
"Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..”

J. Katju in D.Velusamy vs D.Patchaiammal on 21 October, 2010
“If a man has a `keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'”

Why was this not expunged? The Supreme Court using such derogatory language to describe the circumstances of many women in exploitative relationships is unfortunate.

Why the Supreme Court of India cannot on its own criminalize marital rape

Even though I support the legislative criminalization of marital rape in India, I think it is possible to persuasively argue in favor of the legal principle that while the Judiciary under the Indian Constitution can strike down a law that creates a criminal offence on the ground of arbitrariness, it cannot add language to a statute that would result in creating an offence or in criminalizing acts or acts by an exempted (by the legislature) category of persons and that the latter does not fall within the powers and jurisdiction of the Supreme Court.

Criminalizing conduct is a legislative function and a Court cannot usurp this function.

In case a criminal law offends Article 14 by arbitrarily exempting a category of persons, then the Court can strike down the entire law compelling the legislature to re-enact the law. This would of course require a well-functioning legislature, which India lacks.

See 
“As stated above, the Supreme Court held as far back as 1812 in United States v. Hudson and Goodwin, and several times since then, that there are no federal common law offenses and that before someone can be punished as a criminal, his conduct must “plainly and unmistakably” run afoul of a federal criminal statute.

As the court has also stated, “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures, and not courts, should define criminal activity.”

The court deviated from this sound reasoning in Dirks, a move that has seemingly been tolerated by Congress. The court should not compound its error by going one step further, even if it seems like a small step. If Congress wishes to criminalize insider trading or expand the scope of current criminal liability, it can and should do so.”

From http://dailysignal.com/2016/09/30/supreme-court-should-make-decision-that-upholds-that-congress-not-agencies-should-make-criminal-law/

And see this interesting discussion on the judicial criminalization of marital rape in Nepal at http://www.nepalkanoon.net/2013/08/08/concept-of-criminalization-penalization-and-principle-of-legality-in-our-judicial-discourse-2/

Personal laws cannot be allowed to violate the constitutionally guaranteed fundamental rights

- Seema Sapra 

In my opinion, personal laws have to be subject to the guaranteed fundamental rights in part III of the Constitution and a larger Supreme Court Bench needs to correct course on this issue. How can personal law be exempt from scrutiny for violating fundamental rights? The triple talaq, Sabarimala and Haji Ali cases presently before the Supreme Court of India present the perfect opportunity for the Supreme Court to declare that fundamental rights are supreme and personal laws that violate fundamental rights of citizens will not be enforced by the Indian State. But the Center’s submission before the Supreme Court of India that triple talaq violates the equality and dignity of women and is an undesirable practice is cursory and not very creative. The Court should in its judgment discuss in detail exactly how and why triple talaq violates the fundamental rights of Muslim women.

Narasu Appa Mali is only a Bombay High Court decision so it is not precedent for the Supreme Court.

The Supreme Court in Sant Ram versus Labh Singh did not decide the issue as to whether or not personal laws are subject to Part III.

In Shri Krishna Singh versus Mathura Ahir, this issue is cursorily mentioned and disposed off in a single paragraph which states:
“It would be convenient, at the outset, to deal with the view expressed by the High Court that the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the order of yati or sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III of the Constitution. In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he could not introduce his own concepts of modern times but should have enforced the law as derived from recognized and authoritative sources of Hindu law, i.e., Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or is modified or abrogated by statute.”

The Supreme Court in Shri Krishna Singh does not even discuss this crucial constitutional issue, no reasons are given, and it simply states (incorrectly in my view) that Part III of the Constitution does not affect personal laws.

So it would appear as if the issue as to whether or not personal laws are subject to scrutiny under all of Part III for violation of fundamental rights is not in any way settled law and the issue is still open for the Supreme Court to decide. I might be missing some relevant judgments, but in any case, the only correct thing would be for a larger Supreme Court Bench to unambiguously clarify that all personal laws are subject to the constitutionally guaranteed fundamental rights in Part III.

Perhaps this was too sensitive a topic in the 1950s and 1960s and our Judges then were not progressive enough, but such a declaration will not be controversial today. Most importantly the language and spirit of Part III makes this the only correct position in law. This will also be in line with modern conceptions of human rights. Religious scriptures written and religious practices developed centuries ago when there was no concept of basic human rights, and when it was culturally appropriate to treat so-called lower castes and women as lesser human beings, cannot be allowed to be used to continue to violate the fundamental human rights guaranteed by Part III of the Constitution of India merely by calling them personal laws.

Comments on the free speech Murugan judgment of the High Court of Madras- by Seema Sapra

Glanced through the Murugan judgement. First thought was what an awful lot of effort and citations and discussion it took for the Court to protect what is clearly a book of obvious literary value. Just shows the high level of threat to freedom of speech in India and the unsatisfactory jurisprudence we have in this area.

And we get the Krishna Iyerisque writing style again, why don’t our judges prefer simple straightforward English?

A sentence from the Murugan judgment: 

"Thus, whenever free speech and expression is sought to be given wings and let loose against the backdrop of one’s creativity, it must carry on its flight within the domain of constitutional morals, forever remembering that while individual opinions and forms of expression are critical to advancement and multifaceted national development, equally important is the safeguarding of the dignity and respectability of another and his cherished beliefs, for the latter must never be compromised on account of the freedom guaranteed under 19(1)(a), as the victim in such circumstances will be no less than the constitutional heartbeat of fraternity – The national brotherhood.”

What a mess this sentence is. Freedom of speech is not a bird to be occasionally let loose. And where does our constitution require that our free speech must never compromise the “respectability” of everyone else’s cherished beliefs. We might as well shut up then. Meaningless and under-examined and unnecessary sentences like this are prone to be used in subsequent cases by less articulate judges to arrive at undesirable conclusions.

This sentence so exemplifies what is wrong with our 19(1)(a) jurisprudence. Someone rightly pointed out that Murugan won not because of our Judge made law but because of judicial discretion in his case.

Was this sentence necessary? No
Does this sentence state the law on 19(1) (a) and 19(2) correctly? No
If this sentence sets out the law on freedom of speech, then speech can be restricted on the ground of “constitutional morals”, whatever they might be.
If this sentence sets out the law on freedom of speech, then the value and freedom of speech is dependent upon some notion of it being “critical to advancement and multifaceted national development”.
If this sentence sets out the law on freedom of speech, then speech can be restricted on the ground that it merely mocks the dignity of another. No more jokes, satire or parody. You cannot even call anyone undignified.
If this sentence sets out the law on freedom of speech, then speech can be restricted on the ground that it merely mocks the cherished beliefs of another, even if those beliefs are worthy of being ridiculed.
If this sentence sets out the law on freedom of speech, then you can “NEVER” “COMPROMISE” “ANYONE’S” dignity or cherished beliefs. There is no exception to this rule if the sentence lays down the law on free speech.
And what would it mean to “compromise”? Would a joke, a cartoon, exposing a belief as rooted in falsehood or in prejudice, compromise such a belief even though its holder cherishes it?
Who decides if A’s beliefs have been compromised? The compromised, the compromiser or the Court or public opinion?
If this sentence sets out the law on free speech, then anyone could come to Court and demand that someone else’s speech be curbed because it attacks, offends, victimizes or “compromises” the “national brotherhood” whatever that means.
This sentence adds a new ground for restriction of speech which is not available under 19(2), – the ground of national brotherhood.
This sentence provides an opening for anyone to approach the Court and insist that A’s speech be restricted because B’s dignity or cherished beliefs have been “compromised”.

This sentence in the Murugan judgement shows that our judges can sometimes get so caught up in decorative language that they pay little attention to what that language actually conveys.

It also shows that our Judges are still not open to seeing free speech as the right to offend, shock and awe.

Unnecessary and loosely worded sentences like this which wrongly describe the constitutional law on free speech are found in almost every free speech judgment of our Supreme Court. And they are the reason why our free speech can be so easily attacked.

We need a real free speech movement in India.

The Murugan judgment also reproduces the problematic and newly developed "fraternity" value that the recent defamation judgment of the Supreme Court relied upon to uphold the criminal law on defamation. This "fraternity" concept that our Judges are developing as "national brotherhood" is headed in directions potentially dangerous for individual liberty. There is no constitutional obligation on citizens to love or respect one another or each others ideas, beliefs, traditions etc. India is full of beliefs that stink. The fraternity idea cannot mean some kind of judicially policed brotherhood or parivar. The fraternity idea could however be developed along the lines of social contract theory where equality, liberty, and other relevant values and goods would be guaranteed for all. So the Constitution is the grundnorm or social contract around which Indian polity and society are organized based upon guaranteed fundamental rights and freedoms. Fraternity only means this - that each and every Indian citizen is equal and important in the eyes of the law and the Constitution.


The Supreme Court is clearly going wrong in articulating some kind of constitutional duty of citizens to be fraternal, to love each other, to be brotherly, etc in how they treat each other, and to further suggest that we must curtail our free speech in deference to some national brotherhood principle. There is no such constitutional duty and this is not why fraternity is mentioned in the preamble to the Constitution. 

The right idea of fraternity instead would be an idea available to citizens against the State and the Government, requiring that for the State, all citizens must be equal and be equally entitled to equality of opportunity etc. This is the right idea of fraternity – that the State must govern so that this equality principle is progressively realized. Fraternity means no citizen can be left out in the cold under our constitution and the law.

Creating an Indian Single Market - an opportunity for the Supreme Court of India to contribute by drawing upon ideas from International Economic Law & Policy

A nine-Judge Bench of the Supreme Court of India will soon deliberate upon "the tension between the power of the State Government to tax and raise revenues on the one hand, and the constitutional directive to ensure free movement of trade and commerce within the territory of India" under the Constitution of India. See Six Opinions, One Problem: Why a Nine-Judge Bench of the Supreme Court will Rethink a Fifty-Year Old Case by Alok Prasanna Kumar. 

This issue reminds me of a paper I had published as a Chapter titled ‘New Agendas for International Economic Law Teaching in India: Including an Agenda in Support of Reform’  in Colin B. Picker, Isabella Bunn & Douglas Arner, (ed.) INTERNATIONAL ECONOMIC LAW - THE STATE & FUTURE OF THE DISCIPLINE, Hart Publishing, 2008. It was republished as “An Agenda for Teaching International Economic Law in Indian Law Schools”, Indian Journal of International Economic Law, 2009, National Law School, Bangalore. The paper is available for download on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1360732

In this paper, I had laid out the case for (and I quote): 
"New agendas for IEL teaching in India (and indeed for other developing countries), must derive from and support domestic 'reform' objectives. The ideas in Karl Polanyi's 'The Great Transformation' and in John Ruggie's work on embedded liberalism are useful for imagining, defining and mapping the meaning of 'reform' for India. These ideas provide language and concepts for contestation and debate over substantive meanings and outcomes of 'reform'. They also embrace notions of meaningful societal participation in the processes of both the definition and implementation of 'reform'. IEL teaching in India must more actively engage with domestic issues arising on account of the liberalization of India's external trade as well as the liberalisation of its domestic economy. Even broader agendas for IEL teaching in India can be found within reform discourses that extend beyond economic reforms into bigger questions about reform of governance in India, with corresponding implications for constitutional law, federalism, reconstructions of meanings and structures of governance, and in their broadest sense become questions about negotiating and defining the social purpose of domestic governance and of providing adequate delivery systems for such governance. By packaging different reform discourses together, IEL courses could enable the creation of new knowledge, the development of new discourses, and the creation of new capacity as well as space for useful social, political, constitutional, and legal activity. As part of arguing the case for more IEL teaching, efforts are required to broaden the audience or market for IEL knowledge, and increasing 'demand' for IEL would be an important component. IEL teaching in India might usefully develop an inward looking focus, by engaging more with issues and problems confronting the domestic political economy. It must also develop new issue linkages between competing substantive values, competing interests, and substantive outcomes and procedural mechanisms. In doing so, IEL teaching would contribute towards constructing a more inclusive redefinition of the 'problem-space' of reform in India." 

The issues that the Supreme Court of India will consider as discussed in this blog post about the tension between "the power of the State Government to tax and raise revenues on the one hand, and the constitutional directive to ensure free movement of trade and commerce within the territory of India" and the GST issue would both benefit from analysis from an International Economic Law & Policy point of view. There would be a lot within WTO law and EU law & policy for instance about the creation of a single market etc., which could help make the case for an Indian single market before both the Court and the Indian Parliament and State legislatures. Hope the lawyers in this matter draw upon this broader material and discourse from IEL.  

Why the India Supreme Court judgment upholding the constitutionality of the criminal defamation law fails to convince

Read the judgment here

The Constitution of India guarantees the right to free speech under Article 19(1)(a) and this right can only be restricted for limited reasons expressly enumerated in Article 19(2) of the Constitution with the additional requirement that any restrictions imposed on this right satisfy the test of reasonableness. The recent judgment of the Supreme Court of India which has dismissed challenges to the criminal law on defamation based upon pleas that it violated the right to free speech is unconvincing as it completely fails to consider and apply the mandatory test of the “reasonableness” of restrictions permitted under Article 19(2). This to my mind was or ought to have been the crux of the challenge. The constitutional point being that criminalizing defamatory free speech (with a potential 2 year prison sentence) is an unreasonable restriction because it is excessive in righting the wrong committed against the allegedly defamed person, A person wrongfully defamed can reasonably obtain redress and justice and reclaim her reputation by pursuing a civil remedy. It is excessive to imprison the defamer for 2 years. The legislature or the judiciary would be free to make recourse to civil remedies for defamation easier and provide more effective civil action relief by way of damages, public apologies, etc.

The judgment in my opinion discloses a complete misunderstanding of the constitutional scheme. There is no doubt that reputation is a valuable right and that it is part of the right to life. But Article 21 which guarantees the right to life in the Indian Constitution is only available against the State. A starving man has no right to demand food from a private citizen, but might enforce this right against the State under Article 21. The judgment goes wrong in basing its decision on some kind of balancing act between Articles 19(1)(a) and 21.

The State is empowered to make laws including criminal laws to protect citizen/ resident rights. So the State can certainly protect reputations by enacting/ enforcing anti-defamation laws.

The issue before the Supreme Court was, whether in view of the fundamental right to free speech guaranteed under Article 19(1)(a), a criminal defamation law amounts to an unreasonable restriction impermissible under Article 19(2), when the purpose of protecting reputations from wrongful and malicious harm can be achieved through less restrictive means. This central issue is not addressed in the judgment and this question is not answered. 

The references in the judgment to the objective of fraternity mentioned in the preamble to the Indian Constitution and to the Constitution's concept of unenforceable fundamental duties are also misconceived. These values cannot enlarge the scope of Article 19(2) and cannot be a reason to restrict the right to free speech.

I also wonder if someone should have challenged the constitutionality of the Article 19(2) amendment itself brought in soon after the Constitution was enacted.

This judgment authored by J. Dipak Misra is also an excellent example of how not to write a judgment or a legal submission or any piece of writing that you actually want people to understand. The judgment attempts to compensate for the superficiality and overall lack of rigor of its constitutional and legal analysis by using incomprehensible words and sentences that only serve the purpose of making the judgment impenetrable, particularly to a non-lawyer. Thin on analysis and original reasoning, the judgment is overloaded with quotations. In some places, words are used incorrectly and contrary to their natural meaning. At one place the judgment states "… freedom of speech has to be allowed specious castle …” a good example of a spurious or maybe specious gem of questionable judicial wisdom.   

The opening paragraph of the judgment reproduced below is particularly illustrative of this abstruse language and as an example of how to reduce simple legal concepts to unneeded and self-defeating complexity. This unfortunately is one of the more coherent passages of original judicial pronouncement in this judgment.      

This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation. The assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social order; and the asseveration on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treated as things of the past, a symbol of colonial era where the ruler ruled over the subjects and vanquished concepts of resistance; and, in any case, the individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavity and unreasonable restriction in individual freedom and further progressively mars voice of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy.

For another well-done critique of this judgment read lawyer Gautam Bhatia at The Supreme Court’s Criminal Defamation Judgment: Glaringly Flawed

If Soli Sorabjee & son Jehangir S Sorabjee were all legal, why does his #PanamaLeaks BVI company have Chinese registered office address? And why is the intermediary LGT BANK (SWITZERLAND) LTD?

Sunset in Vasant Kunj

Sent on my BlackBerry® from Vodafone

On retreats for India Supreme Court Judges & why it was wrong for NSA Ajit Doval to address the Judges in a closed door session

The Judges of the Supreme Court of India just ended a long weekend at the National Judicial Academy in Bhopal on a retreat. They were addressed at this retreat by the President of India who inaugurated it. President Pranab Mukherjee cautioned the judges against judicial activism. 

Ajit Doval

They were also addressed by (among others) Mr Ajit Doval, former RAW officer and currently the National Security Adviser. According to news reports, Ajit Doval in a closed door session demanded more cooperation from the Supreme Court Judges on national security terming it a non-partisan issue. 

According to http://www.livelaw.in/sc-judges-retreat-national-security-advisor-ajit-doval-says-national-security-non-partisan-issue-demands-cooperation-judicial-system/

"Mr. Doval reportedly sought “more cooperation” from the judicial system, in “speeding up” the judicial system, underlining that “national security should be a non-partisan issue”. He shared the idea of an “Indian master plan” to toughen national security, by adopting an “integrated synchronized approach”. 
He further emphasized on the need to view national security as a non-partisan issue, instead of viewing it from a political prism. He also elaborated on the importance of technology, to be employed as a weapon to fight terrorism. 
Dwelling into the link between administration of justice and national security, he pointed out that “delayed justice in terror-related and espionage cases” affects the system. He also listed out a few acts which were having a negative impact on the security systems."

Earlier Human rights lawyers and activists had written to the Chief Justice of India stating that Judges should be exposed to diverse views and that human rights lawyers should also have been invited to address the Supreme Court Judges. 

This is the fourth such retreat for Supreme Court Judges. The last one took place in 2009. See http://www.livelaw.in/supreme-court-judges-retreat-criticism-critical-government-must-also-invited-valid/ for information on earlier retreats. 

While Judges must be well-read, aware of the world they judge in, aware of current domestic and global legal developments and concerns, aware of academic discussions on law, and exposed to diverse views, such retreats are not the best way to deliver this knowledge and understanding to Supreme Court Judges. Supreme Court Judges need to read widely, attend conferences, and keep themselves educated. The problem in India is that Supreme Court Judges are so over-worked that they might not find sufficient time to pursue this knowledge. Some Judges might also not be inclined to actively seek it. 

Coming to Ajit Doval's address to the judges, national security concerns are important but these are also most readily open to misuse by the State to curb dissent and free speech, to restrict fundamental rights and liberties, to crush opposition to its policies, and for a corrupt government to subvert the democratic process. When a national security case comes before the Supreme Court, the Government has more than ample opportunity to place its position before the Court. 

Mr Doval had no business asking for more cooperation from the Supreme Court in a private closed door meeting. What is Ajit Doval's Indian integrated synchronized master plan on national security that he shared with the Judges.? No such plan has yet been shared with the Indian Parliament. What "acts" did Ajit Doval share with the Supreme Court Judges which according to him were having an adverse impact on security systems? 

Mr Ajit Doval's speech to the Supreme Court Judges is dangerous for the independence of the judiciary. It has the tendency to create a bias against and unfairness towards the accused when a national security case comes up before the Supreme Court. How will such accused address the Judges on the Ajit Doval shared knowledge if he/she has no knowledge of it. 

It would be good if all speeches delivered to Supreme Court Judges are recorded and published on the court website in audio and transcript form, so that we all know what our Judges have been told. 

Seema Sapra

Did Kian Ganz actually write this article on Goolam Vahanvati for Outlook Magazine or did he just lend his name?

I have been intrigued for some time by an article on former Attorney General Goolam Vahanvati published by Outlook Magazine and attributed to Kian Ganz who runs http://www.legallyindia.com/

The article titled "The Company He Keeps: Vahanvati is to the govt what a good corporate lawyer is to his client: published at http://www.outlookindia.com/magazine/story/the-company-he-keeps/288474 was a part of a group of articles in that issue of Outlook Magazine. While all the other articles were extremely critical of Vahanvati, the Kian Ganz article was nuanced and sought to portray Vahanvati in a positive light. 

I have been following Kian Ganz's writings on Legally India and Mint for some time and re-reading this article, what struck me was that this Vahanvati article did not resemble the style and idiom of writing in the other articles published by German national Kian Ganz. The English in the Vahanvati article is too dense, and frankly more compacted and more rich than the language that Kian Ganz uses. 

Kian Ganz is a former Clifford Chance lawyer. He now runs Legally India, a legal market news website and is funded by Clifford Chance interested in entering the Indian legal market space. Clifford Chance had a tie-up with AZB & Partners headed by Zia Mody and Behram Vakil. Both Zia Mody (daughter of Soli J. Sorabjee, another former Attorney General) and Behram Vakil have close links to Vahanvati which include the Enron/ General Electric - Dabhol Power Plant litigation. Vahanvati's son was until recently part of AZB & Partners. Kian Ganz has close ties and access to AZB & Zia Mody due to Legally India. 

I have always thought that the Kian Ganz article on Vahanvati was specially commissioned to present a positive opinion on Vahanvati among the more prevalent criticism that Vahanvati faced in his years as the Attorney General. 

Upon re-reading the article by Kian Ganz, I am almost convinced that this piece was not written by Kian Ganz but was authored by a person or persons within the Vahanvati circle of Zia Mody etc., and that Kian Ganz was merely used as the author to present it as a neutral piece by a journalist. 

Not only does the writing style of the article not match that of Kian Ganz, but the depth of knowledge and understanding of the environment and world of Ghulam Vahanvati and the Indian legal and judicial ecosystem that the article displays is something that I have never before seen in any other writing by Kian Ganz. Ganz being a foreigner to India, has never displayed a deep understanding of the Indian political, judicial and legal ecosystem. His writings are always superficial on these aspects. Ganz is more of a reporter of law firm deal news and law firm lawyer moves. He is not an analyst or critical commentator on the Indian judicial system and until his more recent move to Delhi from Mumbai, his exposure to the Indian Courts was non-existent. So for Ganz to have written this piece in 2013 before he even moved to Delhi and gained his still minimal familiarity with the Supreme Court of India is not something that I am ready to buy. 

Something is fishy. 

Go ahead, google other writings by Kian Ganz and show me a single piece that resembles the style of the Vahanvati piece, You will not find it.  

Read other opinions on Goolam Vahanvati

Unfit to hold the post of Attorney General

A Bullet Hanging In The Air

‘The A-G Is Very Smart; He’s Also Socially Active And Smooth’

Who Is This Man Firing The Gun For?

Goolam Vahanvati: Attorney general or mob lawyer?

Inside Man: The convenient opinions of Attorney General Goolam Vahanvati  

The real face of Attorney General

Legally India news website unfairly targets activist lawyer Mathews J Nedumpara

Legally India run by ex-Clifford Chance lawyer Kian Ganz cannot help exposing its biased, elitist, pro-establishment propagandist character.

In a piece titled Court Cuts: When two benches ran out of patience with Mathews J Nedumpara in one day

Legally India unfairly runs down activist lawyer Mathews J Nedumpara who had filed two bold petitions before the Supreme Court of India raising important issues about the functioning of the Indian judicial system. Starting with labeling and dismissing him as a "Maverick lawyer", and going on to inaccurate, partial, and one-sided reporting as to what transpired in Court, Legally India essentially mocks and belittles Nedumpara in what is also a grammatically incorrect article. In doing so, Legally India reduces the important but contentious legal issues and arguments raised by Nedumpara to caricature. Thankfully several lawyers have chosen to comment on Legally India and have objected to the malicious intent and tone and tenor of the Legally India write up.

A fair and good intentioned article would have reported the substantive legal issues and grounds raised by Nedumpara in his pleading and his substantive submissions in Court and his response to the statements from the Bench. Legally India should also have reported whether a fair hearing was accorded to Nedumpara and whether a reasoned order was or ought to have been passed. Such a report would have been useful for readers. Instead Legally India decided to do a hatchet job on Nedumpara. 

One of the two petitions filed by Nedumpara can be read at http://www.documentcloud.org/documents/2804409-Mathews-Nedumpura-writ-petition-128-2016.html


This petition raises some very relevant points about how the Indian judicial system is misused by the rich and powerful. Legally India could instead have spent some useful space on the contents of this writ petition rather than ridiculing Nedumpara. 

Compare this to how Legally India run by Kian Ganz and funded by Big Law including Clifford Chance jumped in to defend the powerful Indian lawyer Harish Salve after he got exposed in the Panama Papers leak, see http://propagandaoutfitlegallyindia.blogspot.in/2016/04/why-high-flying-indian-lawyer-harish.html


Harish Salve, incidentally represented Indian film actor Salman Khan who was surprisingly acquitted in an under the influence drunk driving hit and run multiple murder case. Nedumpara rakes up the Salman Khan issue in his writ petition and points out how Salman Khan might have got favorable treatment compared to ordinary litigants before the Bombay High Court. Maybe Kian Ganz and Legally India sourced the Nedumpara hit job article from a lawyer close to Harish Salve. I would not be surprised if this indeed is the case. 

Also here's why elitist Legally India where subaltern lawyers are routinely mocked for their poor English language skills by elite big law lawyers, might want to engage someone to proof-read their publications.

"But the petitions were so similar in tone and tenor, that both benches had a long arguments with him, before dismissing them."

and

"When both did not listen, Justice Misra asked them to come back at noon, and tell the bench whether he had disengaged his counsel or not."  Which "both"? The preceding sentences only refer to Nedumpara.