A resurgent judiciary pitted against a deprecating executive?

In Accountability, democracy on March 5, 2011 by Gautam

Given that the present government ridden with an unsolvable mess owing to corruption scandals and an exposed decision-making process for which the Prime Minister today accepted responsibility, it would interesting to examine the role of the judiciary in the specific context of supervision of the government’s activities.

The democracy in India was quite a scandalised one till the end of last year, given its disregard for valuable rights of the citizenry, the lack of accountability in its own portals and its reticence in taking on the Executive and the Legislative wings of the State. On several occasions when its own legitimacy was in question amidst widespread criticism as to its authority to appoint itself and exposed instances of disproportionate assets of its members- casting tenable aspersions on its own functioning, the judiciary didn’t really address those concerns, instead conveniently bypassing them against its shroud of secrecy and independence.

Linked closely to the accountability of the judiciary is the extent of judicial authority to question accountability mechanisms within the Executive. The controversy surrounding the 2G-Spectrum and the appointment of the CVC provide us a valuable opportunity to evaluate its role as guardian of the democratic process. An article by Shylashri Shankar in yesterday’s Times of India reflected on the change in judicial attitudes towards vital issues of public importance, specifically as to rights of the citizenry that are not expressly provided.

The Apex Court’s decision quashing the appointment of the CVC P.J.Thomas based on procedural irregularities in the decision making process indicates that the judiciary under the new Chief Justice S.H.Kapadia isn’t hesitant in taking intruding into a critical executive domain when the issues concerned involve legitimate concerns of the democracy, even if such concerns are not directly addressable by the Court.  Given that the appointment of the CVC is a critical political and constitutional decision, the consequences of which would weigh significantly on the ruling parties, this decisions of the Court is quite a severe blow to the government. Questioning the decision of the high power committee that made this appointment however turned on an interpretation of what would be “impeccable reputation” of the appointee. Evidently this is a purely subjective issue; therefore the Court’s approach of even scrutinising the decision was very impressive, let alone quashing the decision itself. While the extent of power exercisable in this regard, and the scope of a PIL to question such decisions of the Executive are a matter to be debated separately, the merits of this specific matter would point to a very changing attitude of the judiciary at the start of the decade.

I would like to point out other judicial decisions in the past years where the Court has actively tried to usurp executive functions in the interests of an aggrieved citizenry. For instance, earlier in 2010 the Court followed closely on the heels of an earlier decision by directing special investigations by the CBI into matters concerning a State to which the CBI’s jurisdiction did not exist. Given that the State of West Bengal here specifically barred the CBI from interfering, an executive decision was made by the Court against the consent of the State Executive.   Similarly, executive  decisions were questioned again when two governors challenged their own dismissal on grounds they alleged to be unconstitutional and against the ‘spirit of their office’. Here too the court struck a mighty blow to the strngth of the Executive. As Shylashri in her article points out, this pathology of the Court could in fact depend on the extent of legitimacy of the government itself. Her take on this is that the attitude of the judiciary towards the government has varied with the majority commanded by the ruling government in the legislature. For instance, in the Indra Gandhi period when the Congress commanded an absolute majority, judicial review succumbed to the will of the ruling coalition as opposed to other periods when the government is a result of an unstable or weak coalition when the judiciary takes it upon itself to remedy the errors of accountability and faulty decision making of the government upon itself.

Manoj Mitta in his article provides an interesting angle to this change in judicial attitude, attributing it to the new CJI.




Protection against sexual harassment bill

In women's rights on November 23, 2010 by Gautam Tagged:

13 years after the landmark ruling of the Supreme Court where CJ Verma for the unanimous court issued guidelines for the protection of woemn at the workplace, the Cabinet has decided to place Protection of WomenAgainst Sexual Harassment At the Workplace Bill, 2010 before the legislature.

The bill, following closely on the definitions and guidelines issed by the 1990 Apex Court ruling, seems to have tried to bypass logistical difficulties in implementing the said guidelines. A detailed analysis of the Bill is available here.

While the Bill is most likely to be passed by the legislature – and this’s a positive move- I am predisposed to believing that the safeguards against abuse incorporated in the bill are insufficient. Such mechanisms, which carry an inherent burden of proof in favour of the victim pose as likely avenues of abuse. More to come on it.


Kosovo’s Independence And the Serbia: A Case for Self Determination or Territorial Integrity?

In Self Determination, Territorial Integrity on December 9, 2009 by Gautam Tagged: , , , ,

On December 1st, Serbia began its statements in the ICJ while seeking its advisory opinion on Kosovo’s declaration of independence in light of Resolution 1244 of the UN General Assembly. The first paragraph of the Serbian oral arguments begins thus,

“The General Assembly of the United Nations has turned to the Court to request an advisory opinion of it on the  accordance with international law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo. The question is one of major importance for the United Nations, and for the entire international legal order, since the Unilateral Declaration of Independence is nothing but an attempt to put an end to the international legal régime the Security Council established for Kosovo in resolution 1244 in 1999.”

Transcripts of the Oral Proceedings will be available here.

Chris Borgen is reviewing the Kosovo situation on Opinio Juris; however, his analysis will be restricted to the International Law Paradigm of territorial integrity and sovereignty. Here I propose to give a perspective of Self Determination in accordance with customary international law.

Now the concept of Self Determination is a very delicate, or rather sensitive one. As Wolfgang Danspeckgruber puts it: “No other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and hopes as self-determination.”  While international law has recognised this right, it has also pledge to uphold the principle of territorial integrity; these two concepts thus end up making the right of self determination more a question of practice.., and to a very great extent of politics.

I say politics with special reference to the Kosovan Case post the Ahtisari Draft presented to the UN General Assembly in February 2006, which proposed the eventual independence of Kosovo; the Draft was finally vetoed by Russia owing to concerns that such a resolution would undermine the principle of State Sovereignty while all other Security Council members were in clear anticipation of Kosovo’s freedom.

Similarly the island nation of Taiwan, off the coast of mainland China, is accepted as a global trading partner – the United States alone has 140 trade agreements with the Taiwanese – but not as an independent country.  Few countries are willing to challenge Beijing’s “one-China” policy, which denies any province the right to secede and sees Taiwan as its 23rd province.

Meanwhile, most of the world refuses to deal with the Turkish Republic of Northern Cyprus, which has been punished with an economic embargo since 1973, when Turkish troops invaded Cyprus and permanently occupied the north, creating a Turkish-dominated de facto state there.  Somaliland – which established a de facto state in northwestern Somalia in 1991 after the government in Mogadishu collapsed – has been largely ignored by the world community despite being a relative beacon of stability in the otherwise unstable horn of Africa.

After declaring its independence in 2008, Kosovo has been recognised as the Republic of Kosovo by 63 UN Member States and the Republic of China. Kosovo’s declaration/recognition as a nation State however is in contradiction with Resolution 1244 of the UN General Assembly.

The peculiar problem posed then is the issue as to how significant is the claim to ‘Self Determination’ and what ground can Territorial Integrity and Sovereignty  hold as regards opposing Kosovo’s independence. I suppose this would be the basis of issues the ICJ will seek to settle in its advisory opinion to the General Assembly.

More on this..


The Newer Context of Civil Liberties

In democracy, human rights on December 5, 2009 by Gautam Tagged: , ,

A colleague recently asked me to start looking at civil liberties from a standpoint that was not restricted to the State-Individual paradigm of liberties. This was something I considered and kept away for a while before I actually stumble onto a context that would relate to such a situation. An article by Ilya Somin here helped me think on these lines.

Ilya Somin is of the opinion that nationalism/patriotism is one of the greatest evils of modern politics, second only Communism. My agreements with her opinion on Communism notwithstanding, I’ll explain why her take on nationalism is very seriously flawed. For this purpose, I will refrain from borrowing from continuing dialogue between the author and Jonah Godlberg in the National Review.

The author has held nationalism responsible for Repression, Mass murder and a few less colorful things like prejudice against cross-market capitalism. This is probably the State-Individual paradigm that I was asked to look beyond.

The point is therefore that while State actors maybe held responsible for restrictions on civil liberties in most situations, after a point- and as regards a particular set of civil liberties- we absolutely have to look beyond the ‘State’ to understand Rights. Gender inequality and racism for example impose very significant curbs – though veiled, on one’s civil liberties even though most State practices specifically prohibit it. Gender inequality permeates into a very long history of subordination and oppression that, even though proscribed by the State, continues to affect us, and ironically this prejudice ends up getting reflected through State institutions. The issue then is not so much against the State. Go one step further and extrapolate the relationship between the individual and the State; one would notice that the greatest violations of civil liberties have been perpetrated by Autocratic State Actors. That the State is sometimes responsible for curbing civil liberties is true, but after a point – since the modern political framework prescribes democracies- it is not really the State that is the enemy.

While Mr.Somin’s views were put forth in a different context altogether, her references to the Nazis and Fascist regimes, especially her remark on the ‘modern political scenario’ made me go a step further in understanding what this dear friend advised me of.


The Unacceptable Wrongness Of The Sutpak-Pitts Amendment

In right to privacy on December 4, 2009 by Gautam Tagged: , , ,

On 8th November this year, the popular National Health Care Bill encountered its very expected hurdle while being put to vote. House Speaker Nancy Pelosi realised that she didn’t have enough support for the Bill unless she removed the two pro-abortion provisions in it: The prohibition of the “public option” from paying for abortion, except to save the life of the mother, or in cases of rape or incest; and by permanently prohibiting the use of the new federal premium subsidies to purchase private insurance plans that cover abortion.  Once these were out of the way, the Bill was passed by the House by a margin of 220-215.

Disregard the Hyde Act and you’ll see that the Republicans are right in characterising the Stupak-Pitts Amendment as the most popular pro-life vote since Roe v. Vade. Effectively what it does is prohibits government subsidies on insurance plans that cover abortion. So a woman from any family that receives federal aid in purchasing a private insurance plan is systematically denied of her right to receive an abortion. Ordinarily not a very major hassle if you consider the government’s old argument of “if you want our aid, dont kill babies”; but heres why it is. Lets go by the estimate that every family earning less than $88,000/- would come under the purview of the Health care Act. Now lets borrow the arguments from Roe v. Wade where – in striking down the Texan law criminalising abortions- the Court considered “unprepared pregnancies, possible failures of contraceptives and  the famed right to privacy”. What we get is that both the Hyde Act and the Stupak Pitts Amendment take away from a woman, a very valuable right to decide what she wants ot do with her body. The issue is more inflammatory because it targets the weak and poor. The middle class and the rich are going to get that abortion any way. Statistics show that more than 70 % of the abortions take place in such groups. Realistically then we’re talking to forcing an unprepared, poverty ridden individual that has little means of managing a decent living for herself with the additional burden of getting pregnant. It gets worse because many families that seek minimalistic federal funding in their insurance, paying most of the premiums on their own would also be effected by the plan.

And since private insurance companies would want to be a part of this plan, the ideal corollary would be that they will eventually stop offering abortion covered plans thereby very conveniently denying women of their right to privacy.

while pro-abortion groups have widely criticised this move, it is quite surprising to notice about 60 democrats voting aye for the Amendment.

Very surprising indeed.


Understanding the ‘Right to Information’

In Accountability, Right to Information on December 3, 2009 by Gautam Tagged: , , ,

Information Commissioner Shailesh Gandhi in an internview to the Rainmaker recently described the Public Information Officer of every Department as a ‘postman who can only deliver what exists’.

“People don’t really understand what information is.”

Now reason for surprise regarding the RTI is that it is far too successful for its own good. In the first 2 years, more than 2 million RTI application were filed. In the next two years the number jumped twofold.  Its success did not lie in just the numbers but the patterns that these numbers revealed. In a recent study, it was found that upto 30 % of application were filed from rural areas and about 10% of the applicants were  from lower income brackets. 60% percent of the applications are filed towards revealing administrative and bureaucratic inadequacies and misfeasance and about 15% are directed at corruption.  Most of the Appeals before the Commission end up in ruling against the Public Authorities (the number is close to 95%). This trend is very admirable but the challenges posed thereby should be viewed as a significant threat to the future success of the RTI Act.

True that the foremost purpose of the RTI is providing information as it exists; but the underlying object of the RTI Act is as an accountability mechanism. The idea is to hold government functionaries responsible to the people for their screw-ups. Towards this end, it is not enough that people can be provided with information- the process must be followed up with redress.

I just happened to study a few cases before the Information Commissions of a few States- the cases revealed that in cases of mal feasance, corruption and administrative inadequacies, the Commissions powers were limited to providing information to the petitioners and couldnt extend to punishing delinquent officials. Providing information cannot be the sole purpose of the RTI Act if it is to evolve as an effective mechanism of accoutnability.Revealing inadequacies therefore has to be coupled with remedial measures and action against delinquent officials. It is not enough that the PIO ‘plays the postman’.

Going by its success, the State will have to find means to chart the future course of the RTI. The current scenario being the State is trying to amend the RTI to make it less troublesome, I have a slightly different opinion on this aspect. I just concluded a study which showed that the RTI Act can actually be used by the State to its advantage; to increase inefficiency and make its job easier. Reducing corruption and increasing productivity of State Action in a particular area can be convenient byproducts of the RTI. Proactive disclosure of government programs, surveys and findings of investigative agencies for example are simple ways of making sure that officials are less likely to abuse their power. Arbitrariness in administrative decision making being another major hassle, it was seen that the RTI could be used very effectively cull out these deficiencies. A study by the Centre for Policy Research shows that while the Information Commission, on appeals reveal that there has been gross misconduct on the part of the officials, they are generally powerless when it comes to penalising such officials since their powers are restricted to providing information; the applicants continue to remain victims of such practices and are directed to seek remedies from alternative forums, thus falling into the vast cavernous syncholes of a defective justice dispensing system.

First thing on the plan therefore should be to increase the powers of the Information Commissions. This however, will not do much unless an elaborate network is formed whereby the Commissions act in tandem with other tribunals that will go a long way towards strengthening the system of accountability in the Country. With the number of cases in Courts piling up and rising costs of litigation, it may very well be that the balance of power among the organs of the State has tilted away from the Judiciary. The Common man must avail of its benefits and as such will only be possible if it is convenient for him to do so.

A few years back, I wrote a post on Implicity commending the efforts of Ms.Aruna Roy in the enactment of this Statute. I doubt one could predict its success in such formative years.