Wednesday, March 06, 2019

Ayodhya imbroglio, is mediation viable?

The suggestion of the Supreme Court for considering mediation for resolving the Ayodhya Mandir-Mosque dispute shall be seen as sagacious counsel to seize the opportunity to bury the hatchet between the warring parties and usher an era of understanding and camaraderie. Court’s exhortation is not an abdication of its duty to adjudicate. It is a propitious reminder to seek answers that are not binary options; if multiple, they cannot be ticked as right or wrong; or just or unjust: Is not the Ayodhya dispute outside court and not inside? Can the lawyers be trusted to argue the cases with dignity? Will the opinion of the court represent a dispensation of justice to all parties? Will all the people rest in quiet after the verdict and go about peacefully? Do we not have answers that could bring victory to all of us Indians as siblings in arms and not sepoys with arms?

Standards of proof in court are different
It is difficult to say when the ‘Ayodhya dispute’ itself started. There was no unanimity in the 3 member judgment of the Allahabad High Court delivered on 30.9.2010 that there was a temple at the place where Babur had ordered the construction of a mosque or when the mosque was constructed. However, Justice Sibghat Ullah Khan wrote that there was evidence that much before 1855, Ram Chabutra and Seeta Rasoi had come into existence in the same place where the mosque had been constructed. He observed: “It was very, very unique and absolutely unprecedented situation that inside the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.” Can we understand that there was unusual camaraderie between two communities, both offering worship according to their own tenets? Justice Khan did find not proof that the Babri mosque was constructed at the same place where there existed a Ram temple. However, there was archaeological evidence of existence of ruins of once existing temple under the Babri mosque. He said, “Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque” (sic). This was central to the final dispensation that Hindus and Muslims jointly owned the place.  Justice Sudhir Agarwal said that there was not even proof that the mosque was constructed in 1528 but “this much is clear that the same was constructed before the visit of Joseph Tieffenthaler in Oudh area between 1766 to 1771.” Do you realise that even commonly accepted ‘historical facts’ may be found to be not established, if you subject various incidents to pass through the prism of judicially acceptable evidence?

Where Courts cannot be effective
Judgments of courts do not always resolve disputes. Issues of language, region, religion, and sharing of natural resources are wholesome recipes for making political capital to create divisions amongst people. River water disputes between States have been stoked for cheap political gains, even when facts and law were clear and judicial pronouncements were rendered after long deliberations. If the courts in India carry the odium of poor performance, it is largely due to the kind of cases that are brought to the portals of courts are not typically fit to be brought to courts but resolved through negotiations. There are too many cases that are not just fit for hearing before courts; that require no forensic skills of reasoning to write lengthy judgments; that are ill-suited because they adopt adversarial posturing; And Ayodhya imbroglio is precisely one such.

Identifying the nature of Ayodhya dispute  
It is no less an enigma if Sri Ram is a mythological character or a historical hero. Mythologies cannot all be wished away as distortions of facts and hence meaningless. They help consolidate a common belief system through continual storytelling and foster a sense of belonging to a shared experience of history. In that way, Ram’s birth place as Ayodhya evokes the same sense of reverence as Jerusalem does to countless persons that owe allegiance to Judaism, Christianity and Islam. There is a wide spectrum of options in all types of cases, with negotiation at one end and trial as the other. The former means that the parties retain control over the process and outcome while at the trial, a third-party judge or arbitrator has a power to render a binding decision on a pre-designated process of adjudication. Within these extremes exist at the middle mediation, where the third-party neutral does not have a power to impose a binding decision but the parties themselves examine and decide on the outcome. The Ayodhya dispute is not a case that is built on rights where a third-party judge could deliver a judgment that is satisfactory to all of them. This is an interest-based litigation where one party desires the retention of status quo as a mosque, while the other is interested in establishing as place of worship not based on any established right but what one believes as place of birth of venerable Sri Ram based on his religious and cultural moorings. Costs and time are not issues at hand. Restoration of dented prestige, enhancement of social standing and durability are the motivations for the nature of final outcomes that are better assured in a formulation where parties control the outcome. A public posturing through arguments of counsel will offer little scope for concessions but a concession on a point in a confidential in-house process will not obtain public gaze to be viewed as a sign of weakness. In creating a system for dispute resolution, it is best to identify as many persons as possible as stakeholders in order to satisfy a large body of persons with diverse interests and garner better support to the outcomes.
Identifying the stakeholders
There was an attempt by Sri Sri Ravishankar to mediate the dispute. He oversimplified the effort.  His gesture was good but the process that he adopted was not adequate. Identifying the stakeholders to the dispute and convening them are key elements to design a system to resolve the dispute and formulate an agreed process of carrying the negotiation. The parties named in the 13 appeals pending before the Supreme Court are naturally the persons who shall be called to participate. Out of the 5 suits, 4 suits were filed between January 1950 and 1962. The first 2 suits were filed by individuals in their capacity as worshippers. The second suit was allowed to be withdrawn on 18.9.1990. The 3rd suit was filed by Nirmohi Akhara of Ramamnand Sect through its Mahant in 1961, the 4th suit was filed by Sunni Central Board of Waqfs Uttar Pradesh and 9 Muslim residents of Ayodhya in 1962. The State of UP and some named individuals were also parties. The 5th suit was filed in 1989 by Bhagwan Sri Ramlal Virajman  and Asthan Sri Rama Janma Bhumi Ayodhya through Shri Deoki Nandan Agrawal, who incidentally was a former High Court judge and resident of Allahabad. The worshippers’ suits are representative actions (O.8.R.1 under Civil Procedure Code) and the Court always has power to order general notice to all the worshippers and implead parties whose presence the court thinks as necessary.

Identifying the representative body on the side of Muslims is not difficult, for they are already before court. The Hindu Samaj has no such representative body. The persons who brought the structure down and delivered the denouement were a nameless crowd; hooligans to some; if even heroes to the eyes of some. They cannot be surely called to the table. The stakeholders are persons who are the chosen representatives of the dispute who want a solution. Hindu outfits that have evinced no political ambition and who have no clout in the corridors of power shall also be the stake holders to design the system. Representatives of Ramakrishna Mutt and Aurobindo Ashram that owe their institutional origins to Swami Vivekanand and Sri Aurobindo, the very names that ought to instil down the order a swing away from narrow sectarian approaches could be invited to participate. The Supreme Court which is seized of the matter itself could identify the stakeholders and help them design the process.

Systems design to indicate process involved for carrying dialogue
If adjudication through courts or arbitration is not ideal, a third party neutral or body of neutrals that the stakeholders agree will start the process. Normally, the parties themselves decide on the mediator. It is expected that all the information given at the session is confidential. No part of the statement in the process of dialogues shall be used as evidence in any court of law. Given the complexity and enormity of the dispute, the person or a body of person shall be such whose neutrality is impeccable and stature, colossal. The person that heads the panel shall be just not a religious head belonging to any denomination but a global spiritual leader, whose respects our culture in all its beautiful diversity. The Dalai Lama could be a great name to reckon. The dialogue will not be merely on facts pleaded and documentary evidence adduced but will also be on issues of law. Convening the parties to the dispute and setting a time frame will be the task of the panel of neutrals. The respective parties will have the benefit of legal advice at the negotiating table and the statement of law aired freely, will help the parties refine their options. The systems design will include suggestions if the panel could claim neutral opinion on points of law based on the points of disputes Or, the Supreme Court may itself volunteer to give written opinion on the points of law jointly formulated by counsel to the panel for helping the parties to carry forward the dialogues. The brainstorming will be in every bit of options available. The process will match the categories as: what ought to be considered; what may be considered; even what parties are not sure if they should be discussed or not and what both parties are unanimous that they shall not be discussed. They will result in a consideration from the ‘surely must have’ ones to ‘issues of doubt’ to ‘seemingly impossible’ ones.

Historical revisionist exercise is dangerous
We cannot engage in historical revisionist exercise in re-building temples and demolishing places of worship of other religions. It is a fact of history that the Moghul Rulers practised Islam and East India Company and later the English’ direct rule allowed Christian missionaries to proselytise and propagate their religion. The French’ and the Portuguese’ rule in different pockets of India also secured converts from the local populace to Christianity and their modified forms of worship. What if there are persistent demands for demolition of churches and mosques on actual or assumed stand that in any existing Hindu place of worship, there was a church or mosque? Take, for example, the demands that already exist for relocation of mosques and ‘restoration of temples’ at Mathura and Varanasi. A perfectly documented history is the private diary of Ananda Ranga Pillai (Volume 2, 1746 AD), Chief Dubash (translator) to Governor Dupleix of Pondicherry, where he records to the minutest detail of how a Shiva temple was demolished and a Church consecrated in the very same place. The Church is situate is Mission Street at Pondicherry where ardent Christian worship and Sunday Mass are conducted regularly. Imagine, the upheaval it could cause if there is a demand for restoration of the temple at the place, citing the Ayodhya example. The whole exercise must commence from the accepted premise built on factors that (i) Ayodhya uniquely presented an ever ranging dispute running to several generations about the ownership and its nature of user; (ii) at the time of India’s freedom when the will of the people of India prevailed and we gave to  ourselves a written Constitution agreeing to be governed by rule of law through parliamentary democracy, there existed no dispute for restoration of temple in any court other than at Ayodhya and (iii) what happened on 6th December 1991 by the demolition of the disputed structure was an act of vandalism, never to be repeated with demand for construction of any other place of worship in the place of any other form of worship. If the Centre gives assurance that it shall protect all ancient places of worship against vandalism and against conversion of any place of worship from one religion to another, there is simply no reason why the idea of negotiated settlement through a non-adversarial, non-adjudicatory conciliatory process will not be acceptable to all parties.  

Sunday, October 21, 2018

Dharma and the Rule of Law

We use conjunctions between words and/or phrases to denote opposites or of things belonging to the same  genre. Day and Night ,hot and cold, Good and bad are examples of  expressions when an antonym follows the fist word. Fair and lovely, pith and substance, accord and satisfaction are some of the expressions where the first word and the word that follows it mean the same but it is still used that way to lay emphasis on the quality of the first word. Dharma and the Rule of law do not conform to either of the two examples only because the first word 'dharma' literally subsumes the adjunctive 'rule of law'. In such a situation, we normally do not use the conjunction 'and'. Summer is hot; winter is cold; Summer is so much else apart from being hot, the same way that winter is so much else apart from denoting cold. We are going to see how Dharma transcends the rule of law and if our striving for dharma is earnest, if we must make dharma a way of life, the rule of law which is but a smaller concept is already taken care of. We have gathered for a two day conference on "Human Values and the legal world" and the occasion is most propitious to examine the lofty concept of dharma and how we integrate it in our lives, in private and in public; that rule of law is the way we live; that which we endorse and that is assimilated. If it conflicts with dharma, to defy it! By engaging in this conversation, we will have laid the path for a better world to live; a world that lives by the universal mantras. through Satya, Prema, Shanti, Ahimsa and above all, Dharma!

SC cases where the concept of dharma was discussed
The Supreme Court of India has attempted to grapple with the concept of dharma in quite a few cases: in some cases to expound the law, in some cases to apply the law that is dharma; in some cases to say how law, that is legislation, has veered away from dharma. In Aruna Roy v Union (2002) the challenge to the National Curriculum Framework for School Education, was principally on the ground that the education policy framework sought to encourage vedic mathematics, sought to promote sanskrit as an optional language, encouraged the understanding of religious studies and the like.  The Supreme Court liberally used how each one of the objections served the cause of dharma and dismissed the PIL. In Lal Nagji v Jayantilal (1960), the Supreme Court was considering whether the sale of joint family property by the father for discharge of antecedent debt could bind  only if the debt was not tainted  with immorality and whether the knowledge of such immoral use of the debt was essential to be known to the purchaser. In essence, the court was considering the latitude of the principle of pious obligation of the son to be bound by the debt of the father. Gajendragadkar, who was himself a scholar in ancient Sanskrit texts used ancient wisdom through smritis in good measure but he said that the texts themselves have yielded to flexible assimilation through diverse practices and hence there was a need to take notice of the developments in law that have quietly and dextrously chiselled the texts for contemporaneous application. Today, we have a Hindu Succession Act amendment in 2005 which says that the theory of pious obligation is abolished and consequently, there could be no application of pious obligation to bind a progeny for his/her father's debts. In 1975, during the heydays of communism in Kerala, there was Abolition of Joint Family Act, a perverted idea at that a law could abolish the jointness of the family! In CIT v Bijli Cotton Mills (1979), the Supreme Court examined the case of a trader who was realising compulsory payments from customers for payment of 'dharmada' (charity). The contention of the assessee   that these receipts did not form part of trade price and purchase of goods only was an occasion and not a consideration for payment of dharmada. These receipts, the Supreme Court reasoned were property held in trust or legal obligation for charitable purposes. The argument advanced by the State in this case was rather strange. They pointed out to some decisions which said that the term dharma was vague and uncertain and the payment of a portion of price for a commodity as including for charitable purpose must be treated as void. This bizarre argument was repulsed by the Supreme Court but it still examined the origin of this theory to a decision of the Privy Council in Runchordas Vandrawandas v Parvatibhai (1899), which had ruled:
In Wilson's Dictionary 'dharam' is defined to be law, virtue, legal or moral duty.. The objects which can be considered to be meant by that word are too vague or uncertain for the administration of them to be under any control.
However, in a later Bombay case, namely, the Advocate-General of Bombay v. Jimbabai [ILR 41 Bom 181 : 17 Bom LR 799] Beaman, J., felt that in this country “Dharma” did mean roughly and almost invariably in the cases which had come up for legal decisions just “charity” and nothing else and observed:
“It is true that an Oriental's idea of charity might be a little wider and looser than that of the Lord Eldon, particularly amongst the lower and more illiterate classes of Hindus and Mahomedans; but a liberal use of the convenient doctrine of cy-pres, which is surely elastic enough to reach almost anything which Judges wish to reach, might have validated the technical defects and cured the infirmity”.
In A.S. Narayana Deekshitulu v State of A.P. (1966), the SC utilised the occasion while upholding the law abolishing the office of hereditary archakaship in Hindu temples, to dwell deep on the concept of Dharma.  It recounts a query that Yudhistra asks of Bhishma of what is the meaning and scope of dharma to which Bhishma replies:
It is most difficult to define Dharma. Dharma has been explained to be that which helps the upliftment of living beings. Therefore that which ensures welfare (of living beings) is surely Dharma. The learned rishis have declared that which sustains is Dharma.
Taitriya Samhita's definition of the term will admit of a universal application:
Dharmoh Vishwasya Jagatah Pratistha
Loke Dharmistham Praja upsarpanti
Dharmen Papamadnudati
Dharme sarvam Pratisthitam
Tasmad Dharmam param vadanti.
Dharma constitutes the foundation of all affairs in the world. People respect one who adheres to Dharma. Dharma insulates (man) against sinful thoughts and actions. Everything in this world is founded on Dharma. Dharma, therefore, is considered supreme.
Of a similar refrain was by Madhavacharya, the Minister to Hakka and Bukka, founder kings of Vijayanagar Empire, who,  in his commentary on Parashara Smriti, has briefly and precisely explained the meaning of Dharma as follows: Dharma is that which sustains and ensures progress and welfare of all in this world and eternal bliss in the other world. The Dharma is promulgated in the form of commands.

The Supreme Court summed up: Though dharma is a word of wide meaning as to cover the rules concerning all matters such as spiritual, moral and personal as also civil, criminal and constitutional law, it gives the precise meaning depending upon the context in which it is used. When dharma is used in the context of duties of the individual and powers of the King (the State), it means constitutional law (Rajadharma). Likewise when it is said that Dharmarajya is necessary for the peace and prosperity of the people and for establishing an egalitarian society, the word dharma in the context of the word Rajya only means law, and Dharmarajya means rule of law and not rule of religion or a theocratic State. Dharma in the context of legal and constitutional history only means Vyavaharadharma and Rajadharma evolved by the society through the ages which is binding both on the King (the ruler) and the people (the ruled).

Meaning and implication of Rule of law
The concept of Rule of law is believed to have its origin in Chief Justice Sir Edward Coke's articulation during the James I rule. Sir Coke said that the King is under God and the Law and that the Law is supreme over executive. The term 'Rule of Law' was derived from the French phrase la principe de legalite (the principle of legality). The concept was later developed by Dicey and written in his book Law and the Constitution (1885) as following 1. Supremacy of Law 2. Equality before Law 3. Predominance of legal spirit articulated through primacy of rights of individual. The Rule of law largely impacts the administrative law in the sense that law is seen as fulcrum of all activities of the government which will leave nothing to arbitrariness. The equality principle (epitomised through Arts 14 to 16 in the constitution of which we are familiar) ensures that there must be equality before law and equal protection of all laws. The prominence of the legal spirit is what we witness today when there is an increased reliance on courts as protectors of individual rights and liberties. We have now courts tasked to decide what serves individuality and privacy better. We want court to decide if I could be forced to reveal my biometric details to be collected by the State. Inherent is the lurking doubt that State will purvey on all my activities and my personal data could be stolen by all and sundry. We want the court to decide who I shall partner in my bed; is that a male or a female? We want the court to outlaw adultery because we assume the woman to a husband's chattel and trigger the process of law for complaint only if the husband has not consented to her amorous relationship. And above all, we want matters of religion and tradition to be decided by Courts. We want religious beliefs  tested under constitutional precepts of equality and reasonableness.

Dictatorial regimes have always resorted to excess powers only through rule of law
It will be wrong to assume that punctilious observance to rule of law will be a guarantee against arbitrariness. Hitler wrought to himself all the powers that pushed the world to the brink through constitutional process only. The declaration of emergency  and annihilation of all fundamental freedoms and unleashing of terror against political dissidents were through legal processes. The  decision of the Supreme Court in ADM Jabalpur case holding that in a state of emergency nobody had a right to life, as though the source of life was the constitutional document itself. The way we understand constitutionalism and bring our understanding to equality in such a fashion that even domestic decisions within the four walls of your house will be sought to be established on the basis of equality and based on voting rights. Our excessive reliance on rights have only corresponding obligations from the state and start complaining about what the State is not doing always. We extract no good conduct from the individual himself. It is a life of licentiousness; life of irresponsibility; life of indulgences and life of incessant frolic and life of self centred living; life of no care for the society; no care for the people; no care for the family, all of which are sure prescriptions of individual decay and national degeneration.

Excessive resort to courts will not help dharma
Our complaints that courts have failed to deliver spring from two facts: One, there is no guarantee that a case brought to court is decided once and for all within the life time of the person who takes the case to courts. There are innumerable tiers of judicial adjudication and there are various stages in the litigation, each of which could be stifled by inviting adjudication and taking up that matter to further levels so that the case is not decided at all. Two, there are too many things going to courts which ought to be sorted out even without resort to court process. Matters of beliefs and petty differences cannot be taken to courts. A judge of the Madras High Court has examined his own court records in a period of 3 months and reveals how one case gets multiplied  to 8 cases. Some of my colleagues in office want my permission to spend their holidays with their family to be done at government expense by seeking for my permission to create work for them at places where they want to go. Two young law graduates who have not yet registered for practice size up the quality of work by the time that they have to spend for preparation of a case, by the network that they must cultivate to feed that work and seek my blessings for them to begin their practice. They say that they have decided to practise in RCT because, they have found that it is possible to make lot of money with minimal effort! 

Acquiring knowledge of Dharma
How we will lead a dharmic life will also ensure that we commit no breach of rule of law. Impart the right values at home, since home is the first school. Family life is an important social control and sans family, instances like what rocked Delhi in Nirbhaya case are waiting to happen. It is said that there are simple tips for this himalayan task: (i) You must receive training under wise people (vidwans) who are also imbued with dharma; Keep a role model; (ii) You must aspire to attain self purification (atmashuddhi). Spend time for contemplation every day and (iii) you must realise the value of knowledge of the Vedas (veda vidya), voice of god. Direct attention to good conduct and what our scriptures and religious texts teach us. Mind your duties more than you may clamour for rights; find a connection to everything that you do to the society; of what you breathe is what the trees give out; of what we drink and eat are what the earth spews from her belly; of what we speak is what is heard by another and what we hear is what somebody speaks. See yourself as a spec in the continuum of cosmic life. Realise your worth by what you need to  do the society for all the enormity of  what you receive from others. That is your dharma that subsumes the rule of law. If you are a lawyer, promote truth to clients and help them settle. If you are a judge, strive for unearthing truth on all occasions and help warring litigants to better conversations that will resolve disputes. Hear Satya Sai Baba : “Dharma illumines the entire world. The word Dharma means, “that which upholds.” It is Dharma that teaches the right relationship between man and man, man and society, society and society. Dharma reveals to man through his heart what is right and what is wrong, what is true and what is false. It is Dharma , which promotes the welfare of society. Dharma protects its protector. The world cannot exist without Dharma”. 

Friday, October 12, 2018

Minority rights, their constitutional underpinnings

    Concept of minorities relatively new
    In a country that believed in the precept of the whole world as a family, there was no place for differential treatment of the peoples that populated the world to be distinguished on the basis of race or religion. It is also the  country that offered refuge to countless persecuted communities, including the Jews and Zoroastrians as also the religious groups who came to India on the avowed objective of proselytisation but met with no resistance and instead given lands and other financial grants to build places of worship having distinct rituals and gods; indeed, even if the new churches and mosques were constructed after demolishing their own temples, beyond a few murmurs, there was no organised resistance or retaliations. Of course, we are no unique but there are other examples also, such as, the fascinating account of a communication at the turn of the century to the UN Sub Commission  on the prevention of discrimination and protection of minorities,  the Government of Thailand had stated that the concept of minorities was unknown in that country. In Bhutan and Sikkim,  the equivalent expression is an 'outsider' (Gyagar), but is a derisive or contemptuous expression, that is used to denote even an Indian! 

    Emergence of minority rights through Human rights jurisprudence
    Minorities were largely identified on the basis of language and religion because what gave legitimacy to  their difference from the rest, viz., the majority, is the emotional content or perhaps, the deeply personal quotient for identification of distinctness came only through these two factors. Not even Hitler's fascist Nazi party saw Jews as minorities for the atrocities committed on them. He did not mind the numerical strength or otherwise of Jews; he just believed in the pure Aryan race and anti-Semitism as justification enough for extermination of the Jews and Romani gypsies. Democratisation process in governance and universal suffrage encouraged practices of securing bulk votes and here minority groups were more easily susceptible to manipulation than the majority.  The League of Nations' concerns of displaced immigrants and later UN documents were largely responses to human rights violations of immigrants of various nationalities. Large masses of people could not easily be lured to a collective homogeneous conduct or support but exhibited paradoxically sub-group mentalities and fissiparous proclivities. Indeed, the United Nations did not have an exclusive document for minorities till as late as 2012. It was only in 18th December 1992 that the UN Member States adopted unanimously the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, an acknowledgment that a gap existed in minority rights protection. The Minority Rights Declaration established that States have an obligation to acknowledge and promote the rights of minorities to enjoy their own cultures and identities, to profess and practice their own religions and use their own languages. The Declaration ushered in a new era for minority rights. It sets essential standards for protection and offers guidance to States as they seek to realise the human rights of minorities. At the international level, the minorities also had to be associated and identified with National and ethnic differences.

    Constituent assembly’s concerns - political rights and preservation of culture
    For first time, Indian's lowest caste known as "Untouchables" or "Depressed Classes" had been identified as Scheduled Castes introduced by Colonial Government of India in 1935. In the following year Colonial Government of India (Scheduled Castes) Order 1935 specified, "No Indian Christian shall be deemed to be a member of a Scheduled Caste."  After India got Independent from Colonial power, while framing Indian Constitution the Presidential Order of Scheduled Castes and Scheduled Tribes Order 1950, the Scheduled Caste Origins converted to any other faiths or religions different from Hinduism has been left out in Para 3 of Article 341 . Partition in 1947 did play a crucial role in shaping the discourse on the minority- majority question through religion. (As per the National Minority Commission: Muslims, Christians, Buddhist, Sikhs and Parsis have been notified as religious minority communities under section 2(c) of National Minority Act, 1992). Minorities in the country are about 18.4% of the total population of the country. During the divide and rule policy of the British, the linguistic and religious differences were played up to the fore to keep the society as a smouldering boiling pot. The price for freedom from British hegemony was the vivisection of the country on the basis of religion and creation of Pakistan. Soon after partition, the linguistic differences became the basis for State re-organisation. Article 30, as it took shape guaranteeing, whether based on religion or language, right to establish and administer educational institutions of their choice is but a myopic way of ameliorating the multifaceted problems confronting them. The restricted approach in the Constituent Assembly debates was because of several factors: The constituent assembly debates were led by, among other persons, Ambedkar, Nehru and Patel. Each had a varying perception about how the minority rights were to be dealt with because, each had a different world view of what these differences meant. The objectives resolution moved by Nehru on 22nd January exhorted that "adequate safeguards would be provided for minorities, backward and tribal areas, and depressed and other backward classes." An advisory committee under the chairmanship of Patel was constituted and moving the resolution for constituting it, Govind Ballabh Pant said, " Unless the minorities are fully satisfied, we cannot make progress; we cannot even make peace in an undisturbed manner."
    Ambedkar, Nehru and Patel
    To Ambedkar, the principal problem arose because within the Hindu community, there was no equality. The Dalits were subjected to caste prejudices and tyranny. The salvation existed in conversion of Dalits to other minority religions. He wrote, " If you want freedom, you must change your religion.”(BAWS, Vol 17, Part 3, pp 127-129).)  The caste system existed among Muslims and Christians also but according to him, while caste system for Hindus has a religious sanction, there is no such sanction in the essential tenets of religious faiths among Muslims and Christians. Since he talked of the way of emancipation was only through conversion, he did not direct his attention for making provision for SCs who had converted to Christianity but who suffered from social exclusion and economic deprivation. After India got Independent from Colonial power, while framing Indian Constitution the Presidential Order of Scheduled Castes and Scheduled Tribes Order 1950, the Scheduled Caste Origins converted to any other faiths or religions different from Hinduism has been left out in Para 3 of Article 341.
    Nehru was a left liberal to whom religion was wholly unimportant. His secular credentials won the hearts of large sections of Hindus including the Dalits and almost all of the minorities. Describing a moment on the eve of his death, Grenville Austin, who was then a Research scholar and who had turned up at Teen Murti Bhavan, where the body had been kept in state, when he saw Dr Syed Mahmud, a veteran freedom fighter being accosted inside by Babu Jagjivan Ram, "This was truly a scene symbolic of Nehru's India: a Muslim aided by an Untouchable coming to the home of caste Hindu.”
    Patel was the Chairman of the  Advisory Committee and had a part in drafting of Article 29 and 30. Patel resorted to bring equality to all and eradicate the concept of minorities. He believed that such classification was brought about by the imperial rulers to maintain balance between communities but the same had given birth to communal differences. He said: 
    “It is not our intention to commit the minorities to a particular position in a hurry. It is in the interest of all to lay down real and genuine foundations of a secular state, then nothing is better for the minorities than to trust the good-sense and sense of fairness of the majority, and to place confidence in them. So also it is for us who happen to be in a majority to think about what the minorities feel, and how we in their position would feel if we were treated in the manner in which they are treated. But in the long run, it would be in the interest of all to forget that there is anything like majority or minority in this country, and that in India there is only one community.”

    Constitution limiting minority rights to administration of Educational institutions
    The Drafting Committee which met on February 5 and 6 1948 formulated the various provisions relating to minorities into ten Articles(292-301) and placed them in Part XIV under the title ―Special Provisions Relating to Minorities. Reservation of seats in parliament and the assemblies as well as in public appointments, which were originally provided for, were  however, dropped in the aftermath of violence after the partition of the country and during the debates of the Assembly. Sardar Patel, in his letter dated 11th May 1949 to the President of CA mentioned of the ‘changed circumstances‘ for reviewing the original recommendations of the Advisory Committee relating to minorities. He found it inappropriate to have reservation of seats for religious minorities which according to him led to a certain degree of separatism and to that extent contrary to the conception of a secular democratic state. Originally, Art 29(2) opened with the expression, " No minority whether based on religion, community or language, shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained by the state." When the draft was finalised, it became " No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them." Ultimately the Constitution of India used the word ‘minority‘ or its plural form in articles 29, 30, 350 A and 350 B but does not define it anywhere. The practice and propagation of religion guaranteed under Art 25 was not specifically addressed to minorities only but to all religious groups and denominations, but the minorities used the provisions substantially to their own benefit for conversion of SCs and STs. Discussions on personal law reforms for minorities were broached but the subject was tucked away under Directive Principles consigning it as requiring deliberation for bringing  a Common Civil Code in 15 years.

    Supreme Court’s approach in initial years
    The courts and especially the Supreme Court believed that it was the sentinel on the qui vive, literally upholding every challenge brought to the courts that were perceived as State intervention against the minority rights. Commenting on the judicial pronouncements, particularly of the Supreme Court, on the topic ‘Minorities at Cross Roads’, Fali Nariman said at a meeting in 2014 (when the Modi government took over the reins) at Delhi detailing the down trend in judicial interpretations-from the high point  of favouring the protection of minorities and insulating them against any form of State intervention to gradually sharing the public perception and State assessment that the autonomy enjoyed by minority run institutions were engaging in profiteering and converting them as business propositions.  This, he would say was not how the Supreme Court functioned for the first 50 years.. The support to Anglo-Indian Community in the manner of teaching only in English medium even, if they admitted non-Anglo Indians in 1952 to striking down in 1959 several provisions of the  controversial Kerala Education Bill in its advisory jurisdiction of attempted take over by the Communist party led government of Christian schools run in that State showed the acute concerns of the SC for the rights of minorities under the danger of being trampled by the State. Justice S.R.Das would conclude the judgment, The genius of India has been able to find unity in diversity by assimilating the best of all creeds and cultures.  Our Constitution accordingly recognises our sacred obligation to the minorities.” In 1974,  provisions of Gujarat University Act 1949, that provided that teachers of all colleges including minority run institutions shall be recruited by the University were challenged by the Management of St.Xavier's college as constituting a serious infraction of the right to administer educational institution of their choice.  The 9 member Bench affirmed the conclusions in Kerala Education Bill  and of particular interest was H.R.Khanna's  judgment, who said, The safeguards of the interest of the minorities amongst sections of the population is as important as the protection of the interest amongst individuals or persons who are below the age of majority or are otherwise suffering from some kind of infirmity.    The Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of those interests.  It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.”

    The slide begins
    The slide occurred, according to Fali Nariman, when in TMA Pai (2002), the SC adopted an interpretation less favourable to minorities, while relaxing the rigours against  State control over State- aided Minority Educational Institutions (MEIs) of higher learning. Holding that the educational institutions cannot be profiteering businesses, their fundamental right to establish ought to be seen as residing under Article 19(g) as occupation and and the State had power to impose reasonable restrictions under 19(6). PA Inamdar (2007) reiterated the law to allow for State regulation of what shall be fee for state aided minority institutions. Pramati (2014) tightened the norms against the State, even while upholding Art 21A making right to education as a fundamental right but finding that State’s attempt  to fix quota against minority institutions upto 25% admission of socially disadvantaged sections could not be constitutionally supported. A shot in the arm and restoration of pre-TMA Pai era were but short lived. In Modern Dental College, a Constitution Bench resolved the different views of various High courts to hold that the State could provide for uniform single entrance test for prescribing minimum standards for admission into professional courses . This trend, though the judgment in Modern Dental itself was after his comment, according to Fali Nariman, signalled an unmitigated disaster for minorities in the sense, "The Fundamental Right of MEIs have got devalued, because approximating the provisions in Article 30 to the provisions contained in Article 19(1)(g) mean, that as a matter of perception, the ‘reasonable restrictions’ imposed by ordinary law on this Fundamental Right – permissible under Article 19(6) – has also got subsumed in what was an otherwise unrestricted Fundamental Right guaranteed under Article 30".

    Status of converts of SCs from Hinduism to other religions
    All the while, the efforts of Converted Christians to get SC status has not succeeded. The battle has waged on since 1950 itself. Sikhs and Neo-budhist had their way but the Christians did not. In 2004, Centre for Public Interest Litigation through its General Secretary and T. Franklin Caesar of Tamil Nadu filed a Writ Petition dated March 22, 2004 under Article 32 of the Constitution of India challenging the Para 3 of Article 341 of Constitution (Scheduled Caste Order) 1950. More than dozen of individual and advocates have filed the writ petition challenging the same Para of same Article. The case is still pending. The Mishra Commission appointed to consider the identification of socially and economically backward sections among religious and linguistic minorities and suggest recommendations for constitutional amendments and for considering issues in WP 180/20014 and 94/2005 gave a report suggesting:
    • 10% quotas for Muslims and 5% for other minorities in government jobs and seats in educational institutions]
    • Reservation up to 8.4% out of existing OBC quota of 27% for minorities
    • SC reservation to Dalit converts.
    None of the recommendations has been given effect.

    Unanswered questions
    Minority protection in the context of establishing institutions to preserve language and culture leaves out of preview several major issues that affect large sections of minorities in a big way. Or, is everything all right with them and we are guilty of creating a bogey of a perverted public perception for narrow political gains as though there is growing insecurity among the minorities? Are the following questions relevant for examining the real status of minorities in contemporary India?
    • Will it be appropriate to examine the conditions of minorities only through the minimum aperture set through the dwindling efficacy of Art 29 & 30 without examining the social realities of the perceived insecurities of minorities?
    • Is minority protection available only through so called appeasement policies of political parties and considering them as vote banks?
    • Did the Constitution not provide adequate safeguards in restricting the SC status to Hindus and relegating Dalit converts to OBC status?
    • Cow vigilantism, love jihads - are they disturbing trends or exaggerated accounts by the media?
    • Sachar Committee report notes that Muslims have the largest percentage share of children in the age group of less than 10 years with 27 percent falling in this range as compared to the 23 per cent for the country as a whole. However, the current enrolment and continuation rates at elementary level (though picking up in recent years) are the lowest for the Muslims.
    Is the change in demographic pattern of higher rate of population growth among Muslims an index of increased happiness and/ or a calculated design to extract new privileges or mere symptoms of illiteracy and fear of applying family planning devices?
    • Majority People's attitude vis a vis minorities in choosing neighbourhoods and  in the manner of choice of tenants to be confined to their ‘own community’ or reluctance to invite them in social gatherings - Are they imaginary?(Mothering a Muslim child-Nazia Erum)
    • Law criminalising Triple Talaq after Shayara Bano v Union of India (2017) 9 SCC 1 - Should it be seen only as personal law reform?
    We will search for answers in the posts in future.

Wednesday, May 30, 2018

Where the law needs to change track: on the Railways Act

Where the law needs to change track: on the Railways Act

Where the law needs to change track: on the Railways Act

The recent deaths of schoolchildren at an unmanned rail crossing highlight why the Railways Act must be amended

In late April, a bus with schoolchildren collided with a train at an unmanned railway level crossing, near Kushinagar in Uttar Pradesh. Thirteen of them died. This is not the first time that an incident of this nature has occurred, so some questions need to be asked. Is there any mandate for manning all level crossings? In an incident such as this, where the bus driver was reportedly negligent, is the railway administration liable even if the train engine driver cannot be faulted?

Legal issues

We can look for some answers in a 1997 Supreme Court judgment (Union of India v. United India Insurance). In May 1979, at Akaparampa in Kerala, 40 passengers and the driver of a passenger bus that had been hired were killed when the vehicle was hit by a train at an unmanned level crossing. Cases were filed before the Motor Accidents Claims Tribunal, Ernakulam, claiming compensation against the owner and insurance company of the bus as well as the Indian Railways. The Tribunal awarded compensation against the owner. The liability of the insurance company was restricted to a measly ₹500 per victim on the basis of restriction of liability contained in the terms of the policy. In appeals taken to the High Court, the Railways too was made liable for negligence in not making provisions for a gate and personnel to mind the gate. Aggrieved, the Railways went to the Supreme Court. The legal issues addressed by the Supreme Court are instructive for what the Railways was required to do.
A claim for damages for negligence of the defendant falls in the arena of a civil wrong called a tort action. In relation to claims for railway accidents, the Railways Act provides for fixed compensation on predetermined scales. It also provides a forum for passengers to make claims in the form of Railway Claims Tribunals situated in different parts of India. But there is a limitation. Only a passenger on a train can make a claim before the Tribunal. Passengers of a bus or motor vehicle who may have been harmed after a collision with a train can only approach the Motor Accidents Claims Tribunal. However, this tribunal can entertain the claim against the Railways also as a joint tortfeasor if the negligence of the Railways is established.
In the course of the judgment, the Supreme Court borrowed the neighbourhood principle articulated in Donoghue v. Stevenson (1932). It said that the duty of care for the Railways extends not only to those who use the Railways’ services but also to people who are “neighbours” — namely, users of vehicles on roads that intersect with tracks. Consequently, there is a common law liability for the railway administration for an accident at an unmanned crossing, even in the absence of specific provisions in the Railways Act, where the Central government can direct the administration to lay manned crossings. An action at common law can be filed for nonfeasance because the Railways was involved in what are recognised as dangerous operations and hence is bound to take care of road users.
It took up the issue of whether there could be any breach or a common law duty on the part of the Railways if it does not take notice of the increase in the volume of rail and motor traffic at the unmanned crossing, and if it does not take adequate steps such as putting up gates with a watchman to prevent accidents at such a point. It said that there existed a precedent from England that was examined by the House of Lords — that the Railways should take all precautions that will reduce danger to the minimum. It approved the estimate made in Lloyds Bank Ltd. v. Railway Executive (1952) that if 75 to 100 vehicles crossed the level crossing per day, the Railways owed a duty of care at common law to provide for a gate with a watchman. If such a duty can be seen from factual circumstance, the corollary shall be that non-exercise of the power of the government to direct the Railways to lay gates shall be construed as irrational. Alternatively, if the plaintiff had no idea of particularly relying upon the exercise of power by the authority in his favour but is a matter of general reliance, society could by previous experience expect the exercise of such a power and if such an expectation stood belied, then too a conclusion could be drawn that the non-exercise of power by the authority was irrational. The running of trains by the Railways, as pointed out in Commissioner for Railways v. Mc Dermott (1966), has been recognised as inherently perilous and creates a general expectation that safety measures have been taken by the railway administration.

Need for continuous audit

The decision by the Railways to equip all level crossings in India with gates by 2020 does not mean that unmanned gates will be relegated to history. After all, these gates have not come about because the Railways laid tracks across roads and kept these places unguarded. On the other hand, because of the operations of the Railways, where tracks are laid across large tracts of land, there is greater human movement in these areas; in turn, roads are laid across tracks on both sides. The railway administration should have continuous audit of tracks; when new roads come on either side, traffic must be calibrated, adequate infrastructure built, and safety measures put in place. The Railways Act 1989 (through Section 124) provides compensation on strict liability basis. This means that “when an accident occurs in the course of working a railway” (a collision between trains, or when one is a train carrying passengers, or derailment, or any other accident with a train or any part of a train carrying passengers), then whether or not there has been any wrongful act, neglect or default on the part of the railway administration, an injured passenger or one who has suffered a loss can lawfully maintain an action and recover damages.

Have an amended law

On instructions from the principal Bench in Delhi, in every one of the major accidents in India between 2016 and 2017, the families of victims were contacted by the Tribunals where the families resided, and applications for compensation filed. There was quick adjudication for payments. In the incident of a stampede on a foot overbridge at Elphinstone Road station, in Mumbai in 2017, the Bombay Bench of the Railway Claims Tribunal awarded compensation amounts without any contest from the Railways. Hitherto, responses to claims for compensation arising out of accidents have been on an ad hoc basis but it is time the government amends the Railways Act to provide for compensation on a proactive basis without driving victims or their families to file applications in Tribunals. The ex gratia payments will then be substituted by rights-based compensation regimes that will sensitise the Railways to administer their operations with greater focus on public safety. It is also essential to include within Section 124 of the Railways Act a provision for a claim from a “neighbour to a passenger” in the manner that the Supreme Court recognises, namely, a road user of a motor vehicle.

Monday, April 16, 2018

Innocent before guilty 

SC/ST Atrocities judgment, a different perspective

It is not unusual that the decisions of the Supreme Court are counter-majoritarian in that they hold views against what are popular or what could pander to mass sentiments. The recent conflagration is a symptom of how we are slowly allowing populism to judge the quality of judgments and give no heed to the legal underpinnings justifying the conclusions in the judgment. The recent one in Dr. Subhash Kashinath Mahajan v The State of Maharashtra in Crl App No 416 of 2018 dt 20th March 2018 that has sent the country in to a frenzy, even if not popular, is driven through sound legal principles and not very easy to dislodge. It has examined the protection sought by a person claiming to be innocent but against whom proceedings were initiated under the SC/ST (Prevention of Atrocities) Act. The focus was therefore required to examine within the framework of law the manner of how the Atrocities Act could be enforced punishing the persons guilty with the vigour that the Act expounds without at the same time inflicting hardships to innocent persons against whom the complaints are prima facie mala fide and prevent the Act from being "converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons".

Reiterating established legal precedents
The judgment reiterates sound principles of law already laid down: (i) The earlier decision of the Supreme Court in State of MP v Balothia (1995) upholding provisions of SC/St Act, making inapplicable s 438 CrPC that would enable the accused the benefit of anticipatory bill; (ii) Consequently, it said that "the exclusion of s 438 CrPC applies when a prima facie case of the commission of offence under the Atrocities Act is made" (para 60);  (iii)The law should be so enforced that it "should not result in caste hatred." The judgement quotes Dr.B.R.Ambedkar in his famous speech on 25th November 1949, on conclusion of deliberations of the Constitution Assembly underscoring that "castes are anti national and they generate jealousy and antipathy between caste and caste." The judgment therefore exhorts that "the interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society.  They may require check on false implications of innocent citizens on caste lines." (para 47) In doing so, the Court emphatically stated that "we are not diluting the efficacy of section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention". (para 68)

Protecting the innocent as a necessary corollary to provision denying anticipatory bail
After setting out that the perpetrators of atrocities should not be granted anticipatory bail so that they many not terrorise the victims, the Court proceeded to state, "Consistent with this view, it can certainly be said that innocent persons against whom there was no prima facie case or patently false case cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime. The facts that gave place to this law itself provides an outstanding illustration of how an innocent person could be browbeaten and blackmailed against doing public duty. A storekeeper in a Government College of Pharmacy was appraised in the Annual Confidential Report to the effect that "his integrity and character was not good." This was the basis for a complaint for offence under SC/St Act against his superior officers in 2006. The Investigating Officer sought for sanction before the Director of Technical Education (Appointing Authority), in 2010 and the latter refused sanction in 2011. The act of refusal was stated in a complaint in 2016 as an act of atrocity under the Act. The Director approached the High Court under s 482 CrPC to quash the complaint and when it was dismissed, he approached the Supreme Court. The case was an outstanding illustration of a mala fide registration of a complaint because, by no stretch of imagination, a sanctioning authority, who is but a gatekeeper, by denying sanction could be stated to have committed an offence under the Atrocities Act. The complaint and the original complainant and its registration by police were patently illegal and a flagrant violation of the Act. Even if the refusal of sanction was wrong or the exercise of such authority was by a  person who was not competent to pass such an order, as contended by the complainant, the remedy was to challenge the order before an appropriate forum and not make it as a ground for a fresh complaint under the Act.

Registration of complaint and arrest, when justified
The Court therefore examined the case law on the subject and stated with reference to earlier decisions that (i) a judicious scrutiny is to be undertaken even before registration of a complaint if the ingredients of an offence exist even on the express averments in the complaint; (ii) Even if a complaint is registered, it is not necessary to order arrest; (iii) If such arrest is undertaken and the accused is a public servant, permission of the appointing authority shall be taken and if he is not a public servant, the permission shall be taken from the SSP, being a check not against registration of a complaint but against arrest without adequate reasons. The Court was "reiterating a well established principle of law that protection of innocent against the abuse of law was part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest." It said that constitutional guarantees of fundamental rights to all its citizens and a fortiori, an innocent person must be protected against blackmail and wreaking of vengeance.

Salient features of Atrocities law untouched by judgment
It is essential to know that the most potent provisions of the SC/ST Act are the exhaustive enumeration of various acts that constitute atrocities under section 3 and the stringent punishment to the perpetrator of the offence.  The Supreme Court has not touched upon the provisions. Equally important are the provisions for causing removal of certain persons likely to  commit any offence and presumption of abetment of the offence if financial trail from  the accused is sourced to any person or of commission of offence when there exists any present dispute with any person who is a part of the group, which remain untouched. Inapplicability of anticipatory bail provisions is but one of key provisions but it is trite law that even the absence of the provision for anticipatory bail does not take away the power to grant interim bail in suitable cases. The SC has enumerated several earlier decisions of the Supreme Court that recognise this power and particularly in the context of non-availability of anticipatory bail provision in the State of UP.

What went wrong?
The Supreme Court as the sentinel of fundamental rights of all its citizens has placed procedural safeguards for innocent persons only and has not disempowered anyway a valuable right to any member of SC/ST to use the rigours of the act against the perpetrator of any atrocity in the matter of registration of complaints and secure conviction. However, the travails of the Dalit brethren to caste based discrimination and atrocities have not stopped. There are countless rapes on dalit women. There are several social practices that assign to the dalits a lowly living. While the empowerment is pronounced in urban areas thanks to reservations in public employment, the lot of dalits in villages have not improved significantly. There are reports of lynching and indignities heaped on dalits every day even for mere suspicions of involvement in minor offences. In such an environment, the timing of the judgment was just not all right. Our courts take a long time to bring culprits  to book against whom complaints are made. Acquittal rates are high not because the complaints are false but because the prosecuting agency is corrupt and inept. Pre-trial arrest is the only satisfaction to the dalit victim that some instant justice is done. The decision of the Supreme Court, even if it could be supported in Courts as legally well founded, will find no takers outside court.