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.
Friday, October 28, 2016
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/
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/
Monday, October 10, 2016
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.
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.
Monday, July 18, 2016
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.
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.
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.
Saturday, July 9, 2016
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.
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.
Friday, May 13, 2016
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.
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.
For another well-done critique of this judgment read lawyer Gautam Bhatia at The Supreme Court’s Criminal Defamation Judgment: Glaringly FlawedThis 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.
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