Friday, September 11, 2009

To Blog; or not to blog!

The captioned question is in some way in the same league as Hamlet's existential dilemma of 'To be, or not to be; that is the question';…To suffer in the mind, 'the slings and arrows of outrageous fortune', answers the 'to be' query; or 'take arms against a sea of troubles by opposing them, to die; to sleep' would resolve the 'not to be' choice.

A sitting judge does not speak otherwise through his judgments. He shall not take positions in the public domain on any issue that is likely to come before him in court that may ultimately compromise on his impartiality.

Do not judges make public speeches or attend seminars, express their views and enter into debates? Do they not write articles in print media on legal issues? Public speeches pale into thin air. If they are captured in human ears, they shall be but stored in forgetful memory. If they get into print, they shall be trashed by passage of time. If they are recorded in magnetic tapes or digitized, they shall likewise be consumed to oblivion in due course. In any event, they shall not cause ripples beyond the immediate vicinity of persons who happen to hear the judges speak or read and forget what they read.

Posting a material in the web carries a certain aura of invincibility, a powerful permanence and an inevitable global presence. So long as this blog was read only in a few homes by the compulsive surfers who may have chanced to land on this web page, all seemed well. Suddenly things have changed for the better or the worse.

There is a person who asks me whether any mother would feel comfortable about bringing a case seeking for custody, if anyone knew my alleged 'gender bias'? There is another person who wants a legal advice. There is another person who wants to post his comment that contains a personal innuendo against a celebrity. I may keep the debate open ended and not take positions; not get judgmental, but even if one person doubts my impartiality, I would have done the institution of judiciary incalculable harm. I have sworn to upholding the constitutional values and I shall not be seen to swerve an inch from my oath of office.

Not on one occasion have I used first person singular in all my posts. I meant to be impersonal about the contents expressed, but I realize, some may even suspect that there is a deceit in the tenor. Sentences could be constructed in passive voice, but still I may have unwittingly employed my personal predilections. Time has come to wind up. What I had written as a last piece bidding good bye to my weekly edits in the law journal that I was editing when I was still a lawyer, seems relevant here, with some minor modifications.

Gilda Radner, an Emmy Award winner and an American Comedienne, who died at 42 with ovarian cancer said, "I wanted a perfect ending. Now I've learned, the hard way, that some poems don't rhyme, and some stories don't have a clear beginning, middle, and end. Life is about not knowing, having to change, taking the moment and making the best of it, without knowing what's going to happen next." I do not know where I have arrived; where I have led you or if I have led you anywhere at all. My tryst with my blogs is over. Some readers have asked me, if there is any other judge in the whole world who blogs. There is also incidentally a reminder that somewhere, the propriety is breached. I began all this when I was an editor of a law journal, continued with it, as a shy bride would walk to the marriage pandal. Now I hang up my boots. I went through with it, with good intentions to constantly kindle your interest to stay put with what is happening in the legal world.

Am I glad, it is all over?

Yes.

Am I sad that it is over now?

Yes.

What is good in a goodbye, if it is not a first-rate experience? As Carol Sobieski and Thomas Meehan say in Annie, a Hollywood Musical, 'How lucky I am to have something that makes saying goodbye so hard!'

'A goodbye isn't painful unless you're never going to say hello again'. I will move over to other tasks and come back again someday to say, Hello!

Wednesday, August 26, 2009

Abortion for the mentally retarded – the outer limit of patient autonomy

On 17.7.2009, a Division Bench of the Punjab & Haryana High Court, comprising of Justice Surya Kant and Augustine George Masih decided a case ordering the termination of the pregnancy of a rape victim, who was mentally retarded person and an orphan at that, staying in a Government Care Home. The judgment is like it has never come in any part of the world. A poignant tale of a girl discarded on road, picked up to be brought up in government run homes. Her mental retardation and inability to protect herself adequately, heightened her vulnerability to be repeatedly raped allegedly by male guards employed at the Home, aided as they were, by an Ayah for money to be ravished in the bathrooms.

The law distinguishes between mentally ill people from a mentally retarded person. The guardian procedures are consequently different: in the former, it would be the Mental Health Act and in the latter, it is the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. The National Trust Act establishes a Central Committee at Delhi and Local Committees in every district. The Committees shall have the power to appoint guardians for a mentally retarded person.

The Medical Termination of Pregnancy Act empowers a medical practitioner to terminate pregnancy of a woman whose length of pregnancy is not more than 12 weeks. If the pregnancy is more than 12 weeks and less than 20 weeks, the decision shall be at least by two medical practitioners. In both situations, the MTP could be undertaken, only (i) if the continuance of pregnancy would involve to the life of the pregnant woman or of grave injury to her physical or mental health. Where the pregnancy occurs by rape or a failure of any device or method used by a married woman or her husband for the purpose of limiting the number of children, it may be presumed that there is a grave injury to the mental health, or (ii) there is substantial risk that the child, if allowed to be born, may suffer from physical or mental abnormalities as to be seriously handicapped. No MTP carried out without the consent of the woman and if she is less than 18 years of age or a mentally ill person, without the consent of the guardian. In this case, since the woman was a mentally retarded person (and not mentally ill) and there was no local committee constituted under the National Trust Act, the Chandigarh Administration that was running the Institution where the woman was residing applied to the Court for the termination of pregnancy.

The Court assumed jurisdiction as a patria perens for deciding the question of desirability of MTP. It passed an interim order on 9.6.2009, containing inter alia, direction for constitution of an expert body of doctors for examining the pregnant woman (the Court used only the term 'victim' for the pregnant woman) and report on 13 points that included, the issue of consent of the mentally retarded person, any risk or complications relating to pregnancy and child birth and the most prudent course to be followed in the best interest of the victim. The report was a heart-wrenching record of what the mental condition of the victim, her desire to retain the fetus and deliver the child, the changes occurring to her over a period of time of constant crying, denial of entertainment such as TV viewing, which she was previously accustomed to and her inability to comprehend issues of parenting. Read what the doctor/ psychologist had to say about her:

She could identify the place but could not convey what is meant by a hostel, hotel or a hospital. She could name doctor but had no conceptual understanding of the roles and functions of a doctor. She acknowledged that she had a child inside her but had no idea of how conception takes place, the development of pregnancy or even the duration of pregnancy, age of child inside her, how will it come into the real world, chances of any harm to or abnormality to her unborn child, what is expected of her in child rearing, how to provide succor and sustenance to child. To the extent that in her unborn child she saw the possibility of having a brother to her. She even had no clear idea of female and male, sexual act and its attendant emotions, concept of marriage, her role as a wife except that she would cook for the "bhaiya") (refers to matrimonial partner as a bhaiya or possible to every man as a bhaiya). She had poor idea of her sexual role and expectations in marriage. Her simple mental operations are reflected by her anguish at a preferred suit (salwar and kameez) being torn during what she narrates attempt to undress her rather than an unwilling sexual encounter and its consequences thereof.

The judgment records the victim's point of view, as proffered by the counsel appointed to assist court in the following words: The learned amicus took us through a fine literary odyssey to impress upon us that in her lost world, the victim has now got a ray of hope of having someone as her own and it would be exhibiting gruesome cruelty to deprive her of what she now cherishes to come out of her and make her life meaningful. Besides asserting the right of self-determination for persons with intellectual disabilities, the learned amicus-curiae also relied upon two Division Bench decisions of Madras and Kerala High Courts in the cases of [i] V. Krishanan vs.G. Rajan @ Madipu Rajan and others, (a case where a minor girl alleged to be 16 had been married without the consent of her parents and when the parents of the girl wanted to terminate the pregnancy, the girl and her 'husband' wanted the continuation of the pregnancy and the Court denied permission to abort and upheld the desire of the girl to carry her pregnancy to full term and deliver the child) and (ii) Mrs. Usha Abraham v. Abraham Jacob (a case where a husband sought for divorce on the ground that the wife was mentally ill, but the court refused reasoning that the woman was only slightly mentally retarded and hence she could perform her marital ob ligations).

The Division Bench posed to themselves the question 'Should we not permit the petitioner - Administration to medically terminate the victim's pregnancy solely on the ground that the victim wants to keep the child as she likes children or should we adopt a holistic approach after taking into consideration several other factors which have a direct bearing on the future of the victim as well as of the foetus in her womb ?' The court examined the physical conditions of the mother ( she had abnormalities of gait and spinal deformity), the mental capacity of the mother ( she had a mental growth of 7 - 8 year old child, with little communication skills of social behaviour) , the report of the social worker who opined that the victim believed a child to a toy that one can play with, the social conditions and surrounding environment, where the girl had been abandoned by her own parents and brought up in shelter homes her 100% financial dependence with no employable skills than carrying out simple orders like clearing a table, dusting under supervision, pealing vegetables and above all, nil family support.

The Bench concluded, 'we find that except her physical ability, the victim is neither intellectually nor on social, personal, financial or family fronts, is able to bear and raise a child. We are satisfied with the reports of the Experts that the victim is incapable of understanding the concept of motherhood or of pregnancy or pre and post delivery implications. The victim, notwithstanding her innocent emotional expressions, is not mentally in a position to bear and raise the child. Asking her to continue with the pregnancy and thereafter raise the child would be a travesty of justice and a permanent addition to her miseries. The "toy" with which she wants to play, would want her to invest hugely which she is incapable of…

We also cannot over-look the fact that if allowed to be born, the child's own life, grooming and future prospects may itself be highly disappointing. There would be no choice but to keep the child in Ashreya (the government home) where the victim is living, in the company of other mentally ill inmates. There shall, thus, be a consistent risk to the innocent life. His mother's own mental age being 7-8 years, the learning process of the child would be highly inadequate. The grooming and education of the child would again be at the mercy of the Government run/aided institutions whose dismal performance or the severely negligent behavioural attitude towards the inmates has already prompted us to issue various reformatory directions and to monitor their implementation in future. If born, the child would not only be deprived of the care and protection of a father, but, on account of the mental handicap of the victim, the mother also…"

Was there a doubt that with such persuasive reasoning, the conclusion could not have been to retain the fetus, but a direction to medically terminate the pregnancy? Like we said at the beginning, there has been no reported case of such complex situation, a woman made pregnant by rape, by an act, she did not understand as a sexual compulsion except that in the process, her best clothes were torn, a woman that is mentally retarded with a mental maturity of a 7 year old girl, a woman that does not have her own family, having been discarded on road and picked up to be brought in a government run welfare home that paradoxically subverted her welfare. Now, the interesting twist is that the Supreme Court reversed this decision and the victim continues to have the child growing in her womb. It is a significant victory for pro-life campaigners. The case for pro-life has powerful arguments, which we will discuss, after the Supreme Court gives its reasoned decision. Even by a reversal of the decision of this case by the Supreme Court, the strength of the logic expounded in the judgment of P & H High Court is not a wee-bit dimmed. It shows a beautiful course of judicial opinions: there is always the other side of the coin and a better wisdom of a higher court!

Now the woman will hopefully (& prayerfully from our part) deliver the child and get her own 'toy' that she bears in rueful pain and expectant ecstasy.


Sunday, August 09, 2009

Litigations after death

Bury the body or cremate it, whatever way you may want, it may be yet a matter of personal preference, but normally, the religion that the person was born to, dictates the choice. The integrity of the body is always desired, as it goes up in flames or allowed to putrefy. Any internal organs that are harvested after death and before delivery to relatives may leave no trace in the external appearance of the human frame. For the same reason, when the eyeballs are removed from the dead person, it is considered ethical that the sockets are stuffed and the eyelids are made to look normal. Even a mutilated body by accident or bomb blast are pieced together and stitched up before it is buried or cremated. When Michael Jackson’s brain was redelivered to the relatives after clinical examination for the criminal case that has been registered and for finding the cause of death, the brain was surgically re-fixed within the skull. Now that the body is fully integrated, the burial, it is expected, may take place soon.

Statutory laws and cases associated with dead bodies and removal of organs, after death, are rather weird. The Anatomy Act, 1949 sets out procedure in India for authority for removal of organs from dead bodies or dead bodies themselves for therapeutic, research or criminal investigations. In the case of a dead body lying in a hospital or prison and not claimed by any of the near relatives of the deceased person within forty-eight hours from the time of the death of the concerned person, the authority for the removal of any human organ from the dead body which so remains unclaimed may be given by the person in charge, for the time being, of the management or control of the hospital or prison, or by an employee of such hospital or prison authorised in this behalf by the person in charge of the management or control thereof. No authority shall be given if the person empowered to give such authority has reason to believe that any near relative of the deceased person is likely to claim the dead body even though such near relative has not come forward to claim the body. Can a person insist that the Hospital shall take his body after his death? In K. Uma Mahesh v The State of Tamil Nadu, rep. by its Secretary to Government, Health and Family Welfare Dept. Fort St. George, Ms. 9 and 2 others (1998), there was a challenge to the provisions of the Anatomy Act itself on the ground that there was no provision for acceptance of the body, except those that were unclaimed. Without testing the validity of the Act itself, the Madras Court said that the desire of the petitioner was commendable and directed the Director, Institute of Anatomy to accept the body if the same was intimated and the body had been brought without losing much time after death.

Does a person have a right to protect any part of the body of his or her spouse before death? In Smt. Sumakiran Mallena v The Secretary, Medical and Health and others (2008), the wife of the donor filed a writ petition challenging the decision of her husband to donate a portion of the liver to his father who was reportedly suffering from decomposed cirrhosis of liver, - a HCV related incurable liver function. The court rejected the petition as not maintainable, holding that no legal right existed for the wife to prevent her husband’s decision. The court pointed out that the case had been filed on two wrong presumptions that (i) her husband’s affection towards his parents should be subservient to the marital relationship between him and the petitioner, and (ii) that he cannot donate his organs with her consent. On both counts, the court found against the petitioner.

In Madhu Vijayan and another v S.G.Ravishankar (2006) the dispute was for custody of the ashes between the wife and son of the deceased O.V.Vijayan ( a renowned author and story teller) on the one hand and the nephew of the deceased on the other who had performed the obsequies. The Court said there was no property in the ashes but resolved the controversy between parties by allowing the legal heirs to offer prayers with the ashes kept in the custody of the nephew and that the ashes could be jointly immersed at Hardwar by both the litigating parties, a ceremony that was completed nearly a year after the death.

The foreign jurisdiction in U.K. and U.S.A.have had their share of interesting cases as well. In so far as there can be property in corpses or parts thereof, presumably it will vest initially in person carrying out the stuffing or embalming process, or taking steps for their preservation, on the basis that he is the first possessor. Re Organ Retention Group Litigation(2004) is authority for the proposition that if autopsy is conducted with consent, the removal of organs for the purpose of lab tests and report is implicit and no action will lie for damages for removal of organs. The U.S courts have always recognized the rights of next of kin of a deceased person a right to possession of the dead body for decent burial or cremation but not a right to the body as if it were property. To provide California non-profit eye banks with an adequate supply of corneal tissue, Cal. Gov't Code § 27491.47(a) authorized the coroner to remove and release or authorize the removal and release of corneal eye tissue from a body within the coroner's custody without any effort to notify and obtain the consent of next of kin if the coroner has no knowledge of objection to the removal. The law also provided that the coroner or any person acting upon his or her request shall not incur civil liability for such removal in an action brought by any person who did not object prior to the removal nor be subject to criminal prosecution, Cal. Gov't Code § 27491.47(b). In Robert Newman, as father and next of kin of Richard A. Newman and Others v L. Sathyavaglswaran, M.D., in his official capacity as Chief Medical Examiner-Coroner Of The County Of Los Angeles(2002) , the parents, whose deceased children's corneas were removed by the Los Angeles County Coroner's office without notice or consent brought a suit challenging the removal. The court of appeals concluded that the longstanding recognition in the law of California, paralleled by national common law, that next of kin have the exclusive right to possess the bodies of their deceased family members created a property interest, the deprivation of which must be accorded due process of law under U.S. Const. amend. XIV. The court ruled that parents have property interests in the corneas of their deceased children protected by the Due Process Clause of U.S.

Litigations just do not last merely a life time. In death as in life, will litigations thrive!

Sunday, July 12, 2009

Homosexuality - Relevance of religious or cultural views

High Court judgment de-criminalises homosexuality

Law is what is legislated; law is also what the courts declare. In the constitutional scheme, the Union and the States have distinct spheres of legislative competence, while some subjects of legislative power of the Union and the States may also overlap. The validity of legislation may be tested on the question of power to legislate on a particular subject or whether it conflicts with any right guaranteed under the constitution. In recent history, no judgment of a Court has generated as much interest ( and therefore controversy as well) as the judgment of the Delhi High Court striking down a portion of the Section 377 IPC that criminalizes consensual sexual practices between adults of the same sex as violating the fundamental tenets of equality, privacy and right to life.

The forensic course in the judgment

The judgment traces the penal provision to owe its origin to Judeo-Christian moral and ethical standards (IPC was drafted by Lord Macaulay and introduced in 1861), and while the English law was reformed by Sexual Offences Act, 1967, de-criminalising homosexuality, the law has stayed in statue book in India. The government of India spoke through two voices: the Ministry of Home Affairs sought to justify the retention of section 377, where as the Ministry of Health Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts. Ideas of personal liberty, right to privacy, social morality and decency are dynamic concepts that change with times and the legal regimes that respect individual liberty have changed their laws either through pro-active legislation or through judgments striking down such discriminatory laws. Lesbian, Gay, Bi-sexual and Tran-sexual (LGBT) propensities are but emotions of a minority and protection of minority rights is the new paradigm to understanding concepts of equality and non-discrimination.

Why the existing law is said to be wrong

The judgment expatiates that even if the penal provisions are not enforced (the CJI is reported to have remarked that he had not come by any instance of a case filed against consenting adults for practices of homosexuality in his long judicial career) they reduce gay men and women as “unapprehended felons”. The judgment records the contention that a law that proscribes homosexuality to be wrong in legal principle because they exceed the proper ambit and function of the criminal law in a modern society; wrong because they oppress a minority in the community and target them for an attribute of their nature that they do not choose and cannot change. In this respect they are like other laws of colonial times that disadvantage people on the ground of their race or sex; wrong because they fly in the face of modern scientific knowledge about the incidence and variety of human sexuality; and wrong because they put a cohort of citizens into a position of stigma and shame that makes it hard to reach them with vital messages about safe sexual conduct, essential in the age of HIV/AIDS.

How it conflicts with constitutional morality

In any way, the judgment states, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private. Section 377 IPC is facially neutral and it apparently targets not identities, but in its operation it does end up unfairly targeting a particular community. Sexual orientation is analogous to sex and discrimination on the basis of sexual orientation is not permitted by the fundamental rights protected under Articles 14 (equality), 15 (discrimination on the ground of sex), 19 (fundamental freedom guaranteeing right to privacy) and 21 ( right to personal life and liberty). The judgment examines the diverse legal regimes across the globe and takes the whiff of opinions that is blowing around to be suffused in Indian Constitutional notions of equality, privacy, personal dignity and morality.

Objections that the judgment does not address

The objections have been on the basis that (i) the judgment is against Indian sense of morality, tradition and cultural values. In other words, west is west; east is east; (ii) It is against our religion: Hinduism, Islam, Christianity, Jainism and Buddhism proscribe such sexual practices as sins; (iii) Homosexuality is a disease. It can be cured. Legitimizing it is allowing an illness to permeate into our society and fester the healthy environment; (iv) Parental objections will see a new genre of runaway gay couples coming to police stations and courts seeking for protection of their lives and liberty. Surprisingly, the judgment that runs into 105 pages written with remarkable lucidity, verve and logical persuasiveness does not examine religious objections or what are perceived as against Indian culture. One may suspect that the omission is deliberate. The court had delivered the judgment on the strength of legal reasoning that is distanced from religion and dogma. The special leave petitions to Supreme Court, as reported through the press, have challenged the judgment only on the grounds that the judgment does not deal with.

Religious texts on homosexuality

Hindu religious texts focus on love and transcendental at that. Gopika’s love for Radha or of the cowherd boys at Vrindavan to Krishna, as depicted in Bhagvatam cannot simply be treated as vulgar. The focus here is entirely on love and there is no claim or suggestion about the degree of same-sex intimacy involved other than what is described. Many of the world’s great religions have pondered as to whether or not there is sex life in the spiritual world, but in Hinduism there is no debate. Swami Prabhupada, the founder of Hare Krishna movement would expound: ‘The pastimes of Krsna with the gopis clearly demonstrate that pure, unadulterated sex enjoyment exists in the transcendental realm.’ At lesser levels of human existence, sexual preferences between members of the same sex were immortalized in 10th century Khajraho’s friezes. This is not to suggest that they were widely prevalent. They perhaps reflect the view of a powerful, creative minority; and the expression of views of minority was respected. In Jainism, liberation from material existence is achieved through extreme bodily mortifications. Monks forswear all sexual contact; the laity may marry, but must remain faithful to their spouses. Jainism is so unsympathetic to sexual contacts that it is doubtful, if it approved of homosexuality (see Sutrakritangu 1.9.10, 10.13). Buddhism founded a generation later was less rigorous and struck a middle ground, in which liberation is achieved by casting away desires. Monks and nuns were to observe chastity and the religious texts do not seem to favour homosexuality, but as it evolved in their practices in China, Japan and some East Asian countries, homosexuality was tolerated. Both Islam and Christianity through their Books, Koran(7:80-82; 27:165-175; 27:55-58; 29:28-29; 4:15-16) and Bible (there are innumerable references and hence to state a few: Levitcus 18:22, 20:13; Deuteronomy 23:17) treat homosexuality as deadly sins.

Manusmriti refers to a homosexual as kliba. The references in the text are: causing an injury to a priest, smelling wine or things that are not be smelled, crookedness, and sexual union with a man are traditionally said to cause loss of caste (11.68); If a man has shed his semen in women born of the same womb as himself, with the wife of his friend or his son, with virgins or women of the lowest casted, he should carry out the vow for violating the guru’s marriage-bed (11.171); If a man has shed his semen in non-human females, in a man, in a menstruating woman, in something other than a vagina, or in water, he should carry out the ‘Painful Heating’ vow (11.174). Kautalya’s Arthasastra states: Intercourse with a woman other than through the vagina is punishable (4.13.40); male homosexuality is punishable (4.13.40).

The debate will continue

It is irrefutable that religious texts are important sources of law and social practices. To that extent, law will follow religious prescriptions, but it is also true that zeal for reformation has taken the breadth of law to traverse beyond the confines of religion. The Hindu laws of succession, adoption, maintenance, guardianship, etc., have undergone several changes that will have no moorings with the customary Mitakshara or Dayabhaga laws. Again, except that Manusmriti has a historical value, no one is prepared to accept whatever Manu’s text states, as for instance, varnashrama dharma. Kautalya’s Arthasastra holds no more interest than how state craft was practiced in ancient India and it is doubtful if it has any contemporary relevance. Muslim personal laws have generally followed Koranic prescriptions and Hadith but criminal laws are same for all communities and punishments prescribed in Koran offer no guidance to the punishments prescribed under the Indian Penal laws for persons practicing Islam. Indeed, some of the Islamic countries have taken conscious decisions, even on the subject of homosexuality by not terming them as offences. The examples in Turkey, Jordan, Egypt and Mali are cases in point. Notwithstanding the strong biblical views on homosexuality, a host of countries that practice Christianity have changed their laws. The other opinions are, if homosexuality is a disease (many modern medical experts would disagree), why punish a sick person, if you do not punish persons having AIDS or cancer? Some may still ask ,if parental objections arise to same sex marriages, why apply a different yardstick, when law protects runaway couples seeking court’s help through police support to uphold freedom of choice and individual liberty? A judgment always does not change the course of history or annihilate deeply embedded prejudices. It only shows another way; another line of thinking. And, in Delhi High Court judgment, it finds its legitimacy from the Indian Constitution and not from religious texts.

Thursday, June 25, 2009

Motor Insurance - New Imperatives for Reforms

The business of motor insurance

In all countries across the globe, motor insurance constitutes around 60% of business of all insurance companies. The public interest element is still relevant, even as global markets bring private players in the insurance sector. The objective of optimizing benefits for persons who are most vulnerable in motor accidents could never be in doubt. It directs a focus on what ’third parties’ shall secure. Among this category are victims of hit and run cases, where the offending vehicles causing death or personal injuries are not traced or when the driver of the offending vehicle does not possess a valid driving license or when there is no valid policy of insurance at all and the Insurance Company finds a ground to disown liability. The Motor Vehicles Act 1988 (MV Act) does address the claims of victims of hit and run cases and of cases where the drivers do not have effective valid driving licences, but not substantially. The Act gives no relief except against the owner in a case where there is no valid insurance. There is still the problem of even the awards of Tribunals not getting satisfied immediately.

Just as the motor Insurance sector stands poised for a de-tariff regime and there is scope for lowering of tariffs in a competitive market, there is as well a need to look into the imperatives for a better deal to victims of motor victims. Here, the insurance companies who are the stake holders in the business could play a pivotal participatory role in amelioration of the woes of victims or their families. To this end shall be the present exercise of examining the relevant provisions, the judicial precedents and scope for reform: first, by referring to the hit and run cases; second, to cases where drivers do not have effective driving licences; third, to cases where there are no valid insurance policies and four, for delayed satisfaction of awards passed by Tribunals. The article suggests the creation of a body like Motor Insurance Bureau, amendments to Insurance laws and Motor Vehicles Act and the limitations to the proposals.

Hit & Run cases under MV Act

The MV Act contains provisions for redeeming the claims of victims of hit and run cases where the vehicle owner is not identified. Section 161(b) defines “hit and run motor accident” to mean an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts. The Solatium Scheme (the 1989 scheme) introduced by the Central Government by notification in the Official Gazette and administered by the General Insurance Corporation sets out the mechanism for processing and disbursing respectively Rs.12,500 for permanent disability for a victim and Rs.25000 in case of death of a person in a motor accident.

Driver who has no effective driving license under MV Act

As regards the claims involving driver who does not possess an effective driving licence, the Act enables the insurer to state as permissible defence to a claim for damages that there is a condition in the policy of insurance excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. A person holding Light Motor Vehicle (LMV) licence but driving a Heavy Goods Vechicle and causing an accident has been found to have had no effective driving licence and the Insurance Company has been exonerated. Again, the driver who did not renew his licence within the grace period was found to create a situation when the insurer could escape liability.The protection to still proceed against the insurer comes through section 149(4) that enacts a salutary ‘pay and recover’ principle making the insurer primarily liable for the claims for and behalf of a third party even in an eventuality of a breach of condition but however providing for an indemnity from the owner of the vehicle. It was not however till the Supreme Court emphatically laid down in New India Assurance Company Limited v Kamla that courts came to the succor of the claimants for upholding their claims against insurers but surprisingly, the application of this section itself has been defensive in some later judgments of the Supreme Court, either by reference to its prerogative to decline interference under Art 136 of the Constitution by allowing the award to stand as a measure of grace and providing to the insurer a right of recovery or depart with a feeling of despondency that nothing much could be done for the victim and the insurer was entitled to deny liability or direct that decision shall not be cited as a precedent. There is a need to dispel any prevarication in such situations where the right to enforce the claim for a third party victim against the insurer is fully protected by statute.

Insurance policy, its lack or inadequacy under various situations

The provision for compulsory insurance is provided under sections 146 and 147 to the following types of situations resulting in personal injuries or death: a vehicle meant to carry dangerous or hazardous goods that is required to cover risks detailed under the Public Liability Insurance Act, 1991; owner of the goods or his authorized representative carried in the vehicle; passenger in a public service vehicle; workman such as an employee engaged in driving the vehicle or a conductor in a public service vehicle, or a person engaged in examining tickets in the vehicle, employees carried in a goods carriage to the extent of liability provided under Workmen’s Compensation Act. A policy of insurance to cover such cases is called in common parlance as ‘Act only policy’. A personal cover for risk for an owner travelling in his own motor vehicle where he meets with accident due to his own negligence or the driver of the owner, a gratuitous passenger such as a friend or relative being carried in a private vehicle, a pillion rider in a motor cycle that is involved in an accident due to the negligence of the rider and a passenger in a goods carriage (who is not a traveler along with his goods) are cases that fall outside the scheme of compulsory insurance. To such persons, unless there is specific insurance policy coverage (usually by payment of higher premium), the insurer will not be liable.

Delay in satisfying awards

It is common knowledge that cases take a long number of years for disposal and when awards get to be passed, there is scope for appeals and stay of operation of the awards. Although an insurer is barred from disputing the issue of quantum, grant of permission under section 170 to the insurer is a matter of course in proceedings before Tribunals. Filing an appeal through the insured, even when such permission is not granted under section 170 is a familiar practice. Liability to pay subsequent interest at 6% p.a is seldom an incentive to deposit money in court immediately after the award, all of which add to the victim’s woes.

MIB cited in Law Commission Report

Among the most important changes brought in the MV Act viz., the provision that contemplates a scheme for payment out of a fund for victims of hit and run cases came after the 51st Report of the Law Commission of India. Making reference to Article 41 of the Constitution of India, the Commission exhorted the need to compensate victims as arising under the Directive Principles of State Policy that ‘The State shall within limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want’. Further tracing the justification for this provision to U.K, the Law Commission referred to the agreement of Motor Insurance Bureau (MIB) with the Minister of Transport that provided for enforcement of ‘a judgment in respect of any liability which is required to be covered by a policy of insurance, whether or not such person is in fact covered by a contract of insurance and such judgment is not satisfied in full within 7 days from the day when the judgment was given, then the MIB will satisfy the judgment.’ Initially the agreement did not provide for payment in cases where the offending vehicle could not be traced or when the driver had no valid driving licence. This was strongly criticized by Sachs J., in Adams v Andrews that dealt with a case of negligence of an untraced motor-cyclist, who caused the driver of a car, in which the plaintiff was travelling a passenger, to swerve and overturn. He observed as illogical the MIB’s unwillingness to come to the rescue of the individual who had to go cap-in-hand- for an ex-gratia payment.

Situations when MIB will pay

Over the years, the situation has changed and MIB now operates under two agreements with the Secretary of State for the Environment namely, ’The Uninsured Drivers Agreement’ and ‘The Untraced Drivers Agreement’. The "uninsured driver" will either have no car insurance at all, or by virtue of the policy have no valid car insurance. If the uninsured driver was for example, a tourist driving a friend's car without having any car insurance, the MIB will be involved in the settlement of the Third Party injury and / or property claim. If the uninsured driver has no valid car insurance for example, there is only private use on the policy but whilst using the car for business the driver causes a Third Party to suffer a loss, the insurer will repudiate the claim. The MIB will however insist that the insurer will pay the Third Party. The insurer must then attempt to recover its costs from its own customer. An "untraced driver" is for example, a joy rider or someone who has failed to stop at the scene of an accident and is never found. The MIB will consider claims for losses caused by untraced drivers provided that those losses are otherwise uninsured, and the incident resulted in personal injury or death. This is because it would be too easy to submit a fraudulent claim for property only.

MIB model alone satisfies the present need to apply to all enumerated situations that otherwise exonerate insurance companies

In its present form as applied in UK and other countries of the European Union, MIB addresses the concern of all the four situations what we have mentioned earlier, viz, of hit and run cases, of unlicensed drivers, uninsured vehicles and non-satisfaction of the award for a period beyond 7 days when the award becomes enforceable. The 1989 scheme that provides for a mechanism for payment of compensation and which was inspired by MIB, unfortunately subverts the entitlement to the nature of gratis with a further cap on the quantum of entitlement to a few thousands of rupees. Underwriting motor insurance policies is no loss making proposition, although it is always a familiar refrain trumpeted from roof tops by insurance companies. Look at the statistics: The Tariff Advisory Committee – Data Repository has issued the Summary of reports form Motor Data of 4 PSUs for 2005-06 that against a total premium of Rs6217.78 cr collected for all categories of vehicles, the total number of claims were to the tune of 2,610,930. The total claims paid were to the tune of Rs.5544.92 cr against total incurred liability of Rs.6180.40 cr. Both the figures could be seen to be less than total premiums collected. It is therefore not correct to assume that Insurance companies are running under loss in motor insurance business. Better management by private insurance companies and competitive policies with better collection of revenues by tapping the market effectively ought to allow for sufficient surplus to run the scheme on the lines of MIB, successfully in India. The MIB model has been successfully replicated by nearly 50 countries that include all the countries belonging to European Union. Singapore already has MIB set up as early as in 1975.

Changes in law that may be necessary

In India, insurance is in List A (Union) in Sch VII of the Constitution of India. The primary legislation that deals with insurance business in India is Insurance Act, 1938 and Insurance Regulatory & Development Authority Act, 1999. IRDA has the power to regulate, promote and ensure orderly growth of the insurance business and re-insurance business. The power shall include control and regulation of the rates, terms and conditions that may be offered by insurers in respect of general insurance business not so controlled and regulated by the Tariff Advisory Committee under section 64U of the Insurance Act, 1938 (4 of 1938). It has also power to issue directives under section 34 of the Insurance Act, which could include power to set up a fund and enjoin contributions by all insurance companies engaged in underwriting risks in motor accidents. It has power to set up a body to oversee and operate the fund to address the claims of victims or their legal representatives in motor accidents. There shall be corresponding amendments to the provisions in M V Act. The combined effect shall be:

(i) Victims of ‘hit and run’ cases shall be truly compensated in monetary terms of what the victim or his family would have got as ‘just compensation’ under Section 166 of the Motor Vehicles Act or at any rate, at least the amount that is provided under the structured formula under Section 163A.

(ii) The failure to comply with the terms of compulsory insurance as constituting an offence punishable with imprisonment of 3 months under section 196 of the Motor Vehicles Act shall be made more stringent to include provision for distraint and sale of the vehicle to satisfy the claims of third parties under circumstances mentioned above.

(iii) While an owner of a vehicle cannot be expected to obtain compensation for his own negligence or that of his employee, it would be most unjust to deny a gratuitous passenger such as a relative or friend in a private vehicle or a pillion rider in a motor vehicle a right to compensation for the failure of the owner to take sufficient insurance cover. There ought to be provision for claim against a solvent insurer or a voluntary body of persons a la MIB or General Insurance Company that holds a specific fund to defray the claims by affected persons with a right of indemnity to the Insurer on the lines of pay and recover principle.

(iv) With a body such as MIB in place, the claimant shall have a right to recover the award within a period of one week when the amount becomes recoverable.

Conclusion

The various aspects of how MIB is put to operation in UK and other countries have not been addressed here, nor are the exceptions when the right will not be available. The costs of running the Fund and the extent of contributions from Insurance Companies, State participation and how much of increased costs will have to be absorbed by premiums payable by consumers have also not been discussed. This is but a formal presentation of the road that lies ahead for reforms. Air, water, rail and road are just well mediums of transport. Of them, you hold the key from your doorstep only for motor car. They will inevitably be the most used, abused and misused. Our ability to also solve the problems that we create is the hallmark of worthy human endeavor. Cry for reforms in various fields rent the air. A MIB may not solve all problems but it at least assures a better deal for third party victims of motor accidents for a little additional price through higher premiums. As Washinton Irving said, ‘There is a certain relief in change, even though it be from bad to worse! As I have often found in travelling in a stagecoach, that it is often a comfort to shift one's position, and be bruised in a new place’.




Thursday, May 21, 2009

Romanticising Death

There is a certain thrill about the fantasy that we indulge in refusing to acknowledge the death of certain class of revolutionary leaders and celebrities. It is just not a sense of disbelief but a deliberate act of self deception in assigning to such persons a degree of invincibility and blow up larger than life sizes to their physical frames to convince ourselves that that they cannot be annihilated like other ordinary mortals. What do you make of LTTE supremo V.Prabhakaran’s death or alleged death, as the story goes? It was a bizarre sight of large human frame with the back of the head knocked off and the face puffed up with bulging eyes wide open. The fiery tiger seemed badly mauled. Prabhakaran is dead; long live Prabhakaran!

A senior leader from T.Nadu refused to comment because the death was unconfirmed. Television panelists discussed how the eye brow was thicker than ‘original’ Prabhakaran’s; there was no trace of a facial twitch that he always had; why was an identity card around his neck which was unlikely; this was the body of a double propped up by the Sri Lankan army. All these doubts are a theme repeated over the whole length of history. From Adolf Hitler to Subhas Chandra Bose, the world would just have you believe that they just did not die. Again, if it is not the fact of death itself, the cause of death is impressed with a sense of enigma. From Cleopatra to Marylyn Munroe or from Napoleon Bonaparte to John F.Kennedy, the world would want you believe that there were not just good enough reasons for them to die, when indeed they died.

What actually became of Hitler's body? Several theories were spread throughout 1945, after Germany's surrender, that the Soviets' found Hitler and Eva Braun's body remains after what would be thought of as a suicide and burning. Other theories indicated that Hitler escaped Berlin. Hitler's body was not found since it was semi-cremated, falsely identified and it presented no physical evidence that could be analysed. The Russians were never in a position to display the remains of Hitler's corpse, as they certainly would have done if they had taken it away as they claimed. The fact that Hitler's body had not been found created a series of beliefs that the Fuhrer had actually escaped and fled the ruined city. Stalin had announced to Truman during lunch in Potsdam on July 17, 1945, 78 days after his death, that Hitler had escaped. From this announcement began the phenomenon of Hitler spotting across the world, most notably in South America! If you spot a man with a queer moustache roaming on the mountains of Columbia or Argentina, don’t ask for his name. You know, who he could be. He has concealed his identity this long, he will not give into your curiosity by his answer.

The alleged death of Subhas Chandra Bose, the supreme commander of Azad Hind Fauz and Free India Legion in a plane crash in Taiwan on August 18, 1945, has long been the subject of dispute. Recently an Indian central commission of inquiry confirmed one popular version, that Bose's death was staged to facilitate an escape to the USSR. The then Viceroy of India, Field Marshal Archibald Wavell, is reported to have noted in his diary that "I wonder if the Japanese announcement of Subhash Chandra Bose's death in an air-crash is true. I suspect it In 1999, following a court order, the Government of India formed Mukherjee Commission of Inquiry. It was headed by Justice MK Mukherjee (Retd) of the Supreme Court of India. The commission perused hundreds of files on Bose's death drawn from several countries and also visited Japan, Russia and Taiwan. Overturning the findings of previous panels, this commission's findings were that the news of Bose's death in Taipei was a cover-up for his escape to the USSR. The Commission, however, stated that they could not confirm Bose's presence in the USSR for want of evidence. The Mukherjee Commission submitted its report to Indian Home Minister Shivraj Patil on November 8, 2005. The report was tabled in the Indian Parliament on May 17, 2006. However, the Indian Government rejected the findings of the Commission.

Egypt's final queen Cleopatra lived and died in Alexandria. She was born in 69 B.C. and was a descendant of a long line of Masedonian Greek royalty. At age 18, Cleopatra inherited the throne of Egypt. After her siblings' deaths, she feared that she too would be murdered, so she courted the power of the Roman Empire. She was Julius Caesar's lover and gave birth to his son. After Caesar's sudden death, she seduced his friend Mark Antony. Why did such a powerful person commit suicide by allowing a snake to inject poison on her breast? Marylyn Munroe had the world under her feet. Her death on August 5, 1962, sparked huge controversy and, in the eyes of her fans, was never truly solved. The actress, singer and model was best known for her sex appeal and screen presence. She redefined the role of women in Hollywood and opened the door to future generations of female celebrity hopefuls. To this day, many people refuse to believe that her death was accidental, and there is much speculation over what or who truly killed her. The local coroner, who visited the scene later, said the circumstances of the death of Marilyn Monroe indicated a "possible suicide". Since then, several conspiracy theories have surfaced in the decades after her death, including some involving the Kennedy family, alleging that her death was deliberate.

We ever clamor for the black box in history. We do not need to solve all these eternal mysteries. The excitement rests in continuing to keep them as mysteries unsolved. In some essential ways we want confirmation too that we live on the same planet as did these persons who inspired or caused acute revulsion in tens of thousands of peoples. We thirst for all rumours, sans exactitudes. We want to see and fondle the myth in its entire scintillating splendor. If we truly find them back, we will have no cause to celebrate their rediscovery for it is their disappearance that gives these occurrences an aura of immortality.


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Monday, April 20, 2009

Declaration of assets by judges

Pompeia was perhaps a terribly wronged woman. In 62 BC she hosted the festival of the Bona Dea ("good goddess"), to which no man was permitted to attend. However a young patrician named Publius Clodius Pulcher managed to gain admittance disguised as a woman, apparently for the purpose of seducing Pompeia. He was caught and prosecuted for sacrilege. Caesar gave no evidence against Clodius at his trial, and he was acquitted. Nevertheless, Caesar divorced Pompeia, saying that "my wife ought not to be even under suspicion." It almost seems judges’ turn now. Judges are under increasing pressure to declare their assets publicly on a lofty allusion to Caesar’s wife having to be beyond suspicion. The CIC verdict directing the Supreme Court judges to declare their assets has found widespread approbation and the attempt of the Supreme Court to reverse the verdict by filing a writ petition before the Delhi High Court has drawn flak from many a quarter.

Former Supreme Court judges, two of them who were themselves previously Chief Justices of India (CJIs) joined issues and said that transparency and probity dictated that the assets be declared voluntarily by judges. The present CJI said that there was no law requiring judges to make a declaration of assets to the public. To this was the response by some jurists: of what use is Right to Information Act, if we must keep adding several subjects which could not be accessed by public? According to them, the already excepted areas in RTI Act under section 8, such as matters involving national sovereignty, parliamentary privileges, etc., ought not to be enlarged.

Nearer home Sri Lanka passed Declaration of Assets and Liability Law (Act 1 of 1975) requiring judges, among others to declare their assets at the time of their appointments. Many of the African countries have passed such legislation in the recent years to quell widespread allegations of corruption in high constitutional offices. In India, although there is no such law, Supreme Court judges have been declaring their assets since 1997 to the CJI at the time of their appointment as an apex court judge and thereafter every year as per a resolution passed by the apex court on May 7, 1997. "The High Court judges may consider adopting a similar resolution in case it does not have a system of judges declaring their assets soon after the assumption of office and regularly updating the declaration made by them," said the CJI in his letter to High Court Chief Justices. The CJI wrote, "It is essential for an independent, strong and respected judiciary and indispensable for impartial administration of justice." He also called upon the High Court judges to adopt what is known as "restatement of values of judicial life" adopted by the apex court in another resolution earlier.

So what is the objection, if the statements made by judges to their respective Chief Justices are made public? Normally, it may not even sound civil to ask your own brother, sister or even a close friend about his or her financial details without offending his or her sensibilities and evoking a sense of embarrassment. Let us assume that that the attitude is never like a peeping Tom’s voyeuristic proclivities- in this case, however, not in a prurient form, to purvey what is in a judge’s wallet but rationalize it on the ground that the person who is entrusted with the task of judging other’s conduct is beyond reproach. Ask this question, what do you do after getting the details? Should a judge be answering everyone how he has got the wealth that he has declared? Imagine a judge enquiring into allegations of disproportionate wealth case of a bureaucrat. In the course of the proceedings, what if the litigant asks the judge, ‘how did you obtain your wealth, before asking me to explain my riches?’ It may not be a daily occurrence, but consider the mischief that the right to demand the assets statement of a judge could entail. Again, judges are not in the same league as politicians. It is precisely for this reason that the judge, who granted an order of stay of the CIC order, said that judges could not be treated like politicians and ordinary government servants. Politicians are elected by people; they have a right to know the financial antecedents. A corrupt politician may not be re-elected again, if the voter believes that the politician has been corrupt. Can anyone doubt the wisdom of the judgments of the Supreme Court in Union v Association for Democratic Reforms (2002) and PUCL v Union of India (2003), when they said that declaration of assets at the time of standing for election has become the necessity of the day because of statutory provisions of controlling widespread corrupt practices have become insufficient? Judges are not elected as are done in U.S.A. They cannot be removed by people.

What do you do with corrupt judges, do you ask? Without addressing the issues of the appointment and the removal procedures as they exist now, you cannot do anything. Shall we put the nominations for appointments of Supreme Court judges and of the High Court through discussions in the parliamentary select committees and of the respective State assemblies before they are taken on board, so that a full- fledged roving enquiry is made about the antecedents of a judge before he is appointed? A judge that is corrupt cannot be tried by his own brother judge or an ordinary magistrate, as any other public servant is tried, can he be? Judiciary ought to be institutions where normal litigations are fought, where a judge plays the role of an impartial arbiter. Can you parade a judge for dismissal from service before another judge? Let us evolve mechanisms within the judiciary itself to regulate its conduct. If the existing mechanism is perceived as not being successful in preventing corruption in the judiciary, let us evolve better procedures for their recruitment and removal. That will give us answer to who shall access the records of assets of judges.

Wednesday, April 08, 2009

The venerable footwear

On 14th December 2008, an Iraqi TV journalist, Muntadhar al-Zeidi hurled his shoe at President George Bush at Bagram Air Base, Afghanistan, saying that “this is from the widows, the orphans and those who were killed in Iraq. A few months later on March 12, 2009, he was awarded with a sentence of 3 years imprisonment. On March 20, 2009 a music teacher of Mumbai’s Boss School of Music at Vasai a northern suburb of Mumbai, facing an action for contempt for libelous publication against the judges of Bombay High Court and the Supreme Court further aggravated the contempt by hurling slipper against a judge hearing the case in the Supreme Court. The contempt case which was being heard was immediately disposed with punishment of 3 months’ jail term but the slipper throwing act has become now a fresh subject of contempt and the case is still pending. On 7th April 2009, Jarnail Singh, a Sikh journalist working for Dainik Jagran hurled his shoe at the Home Minister at a press conference, in expression of anger against CBI giving a clean chit to Jagdish Tytler for his suspected role of genocidal mayhem against Sikhs following Indira Gandhi’s assassination.

It was stated that in Iraqi culture, throwing shoes was a sign of contempt. Before the Supreme Court, the chappal throwing was itself done during the conduct of contempt proceedings. Is there again a doubt that the Sikh journalist had nothing except contempt when he found that CBI’s exoneration of the former minister for the unjustified violence against his community betrayed the untenability of its claim as a premier investigating agency?

Curiously, India, since the time of old, had different conception of foot, dust smeared on foot, footwear and touching the feet. Padma Padam, that is, Lotus feet, they were, when the allusion was to gods and saints. Padukas that they wore were themselves objects of worship. Falling at one’s foot or sitting by one’s foot or touching the feet of elders were respectful acts and occasions to receiving blessings from the persons whose feet were touched. V.Krishnamurthi has vividly brought out this theme in his extensively researched article on Gems from the Ocean of Hindu Thought www.geocities.com/prohitip

According to him, the Vasishnav tradition had a special significance in divine feet and sandals. Nammalvar, who glorified the Divine Feet of Narayana by the words, turarvaru chuddar adi (the flowing feet of the Lord which blast off all gloom and grief), was himself perceived as incarnated as Lord’s feet. The vertical line or lines worn by the orthodox devotees of Vishnu on their forehead was the symbol of Divine Foot. The Vishnu-Sahasranama has eka-pAd as one of His names and this glorifies the divine feet even more, for it means that the entire universe is part of his one foot. This resonates again with the statement in the Purushha-sUkta (which occurs both in the Rig Veda and the Yajur Veda): pado’sya vishvA bhUtAni, meaning, ‘All these beings emanated from His divine foot’. Vedanta Desika’s Paduka Sahasram was an inspired torrent of poetry in 1000 verses believed to have been composed on one night in praise of the sacred sandals on which the Lord’s lotus feet rest. He says in verse no. 108, ‘ Oh sandals, You are even more glorious than Rama whose glory pervades all the three worlds. For, if not, how did Bharata, who wanted only Rama, accept you as security for Rama’s return? He asks, ‘Is it not common knowledge that a thing accepted as security for money promised to be returned, must have a value greater than the money lent?’ In the Shri Vaishnava tradition, to purify oneself with the dust of the feet of the devotees by washing their feet with water and sprinkling that holy water on one’s head is considered such a sacred act that one of the 12 Alwars got his name toNDar-aDip-poDi-Alwar from the act of his which became a habit and routine with him once he changed his earlier sinning life to one of supreme devotion to the Lord and His devotees.

The Saivaites and Advaitins held similar notions on feet and sandals of holy persons. Divine Mother’s feet are glorified in the Lalita Sahasranama, nakha-dIdhiti-samchinna-namaj-jana-tamo-guNA -- ‘the bright rays emanating from Her toe nails dispel the darkness of Her worshippers’. In other words meditation on Her feet dispels ignorance – the ignorance that causes our bondage to the transmigratory cycle of births and deaths. Again, in a similar vein, Adi Sankara in verse no.4 of his Soundarya Lahari , praises the Divine Feet in superlative terms: ‘Oh Mother of the Universe. Deities other than You reveal their divine form by showing the abhaya-mudrA (Sign proclaiming ‘Have no Fear’) by their right hand and the vara-mudrA (Sign granting the desired boons) by their left hand. But You are holding four different objects in your hands and thus the hands do not show the mudras. Does it not mean that not only these but more will all be granted by your divine feet themselves? Earlier in second verse, Sankara glorifies the dust of the Mother’s Divine Feet. ‘Oh Mother of the Cosmos! I don’t need even Your Feet. Just a speck of dust from Your divine Feet is enough. Even the Creator BrahmA creates the fourteen worlds only with the strength of the divine dust collected by Him from under your feet. Mahavishnu sustains the whole world only because of the strength of the Dust of your divine feet. Lord Shiva wears it on His forehead as sacred vibhUti.’

Sankara himself is only a manifestation of Lord Shiva. The great cosmic dance of Shiva in the holy place of Chidambaram, includes in its esoteric interpretations, distinct meanings for the ‘raised foot of the divine’ --tUkkiya tiruvaDi, in Tamil – and ‘held foot of the divine’ --UnRiya tiruvaDi . The former grants the ultimate boon, namely, Mokshha and the latter performs what is called obliteration (tirodhAna -- disappearance, vanishing.), one of the five divine functions – creation, sustenance, dissolution, grace, and obliteration. Without this fifth function, obliteration, our sins can never be exhausted.

The Vedas themselves prostrate at the feet of the Divine Mother of the Universe. Lallitha Saasranama has a name which describes this in a poetically enjoyable way. The word ‘Shruti’ which stands for the Vedas, is feminine. When Shruti falls at the feet of the Mother, her head touches the divine feet. The dust of the divine feet is crimson in colour since the feet of the Mother is always painted that way – also to remind us of the fact millions of devotees have all the time been doing archanA to Her feet with Kunkum. The crimson dust sticks to the head of Lady Shruti exactly at the parting of the hair. Thus arises the name: Shruti-sImanta-sindhUrI-kRta-pAdAbja-dhUlikA meaning, the dust of whose lotus feet has crimson-coloured the parting of the hair on the head of Shruti. The dust of the divine feet on the head of Shruti is also an indication that even though Shruti may be of vast content and knowledge, Her knowledge of the Divine Mother is only a speck! The great work DurgA-sapta-shati eulogises the worshipping of young girls as manifestations of the Divine Mother and the wearing of the dust under their feet after the worship.

Great are the Divine Feet, greater is the dust under the Divine Feet but greatest is the pair of sandals of the divine feet – known as PAdukA. That is why in the Ramayana Bharata asks for the divine sandals from Rama after he fails to convince him to return to Ayodhya and resume his kingship. The sandals take the place of the Lord for fourteen years as the symbolic King under whose banner Bharata serves and discharges the kingly duties. While he reluctantly takes leave of Rama in the forest where he has gone to plead for his return, and finally gets only the sandals of the Divine instead of the Divine Himself, he puts them on his head and carries them back to the capital with all reverence. The joining together of the two extremities – the Feet of the Divine with the head of the devotee – is what is symbolised in the joining of the palms when one worships or bows in reverence. The right palm denotes the feet of the Divine and the left palm denotes the head of the devotee. This is the esoteric principle behind the joining of the palms.

Touching the feet of Elders or Saints is a unification of point of shraddha and karuna. Hear the Holiness of Kanchi Mutt, Sri Chandrasekara Saraswati speak: Will economic wealth give fullness to life? Certainly not. We have to seek spiritual wealth and with the help of that, regulate the pursuit for economic wealth. Vinaya is the only route to spiritual wealth. How do you get vinaya? Impelled with the basic desire to seek vinaya, seeking the saints and doing namaskara to them is the only way. This kriya will help rise, from what is already "basic"(latent, dormant, underlying) in us, a visible edifice. The timeless and enduring living tradition of this country has the power to convert and soften the most stubborn conceit and self-arrogation. If a little effort is forthcoming, in course of time, desirable changes in mentality will be felt.

Maybe, in all meetings where dignitaries attend and give speeches, there will be a rule to remove the footwear and enter inside. There is no guarantee still that the celebrity will be spared. Next, it could be a pen; a pencil, a sock or paper rolled as ball and if you can proscribe every object that could be used as an object to hurl, what will you do if someone spits? If dissent is the hallmark of democracy, how will visible expressions of anger that are uncivil wane? Banish all modern day weaponry; still wars would be fought with primitive weapons, with stones and sticks. Objects do not cause hostilities. It is all in the mind! Get back the mindset of our earlier times. Venerate the footwear!

Friday, February 27, 2009

Consumer Protection through Class action

Exsiting legal framework
All legal regimes across the globe provide for legal actions by redressal of grievances addressing commonality of rights affecting a large body of persons. The homogeneity of the class may consist of the nature of injuries similarly suffered or exposed to risks in the same accident or the wrong perpetrated by the same tort-feasor. The collective actions, also called class actions, have immense value in consumer actions claiming damages against a manufacturer and/or a retailer selling goods or against an individual or organization or corporate entity providing some service. In the case of a purchaser of goods, the damage may have resulted by defect in goods placed for consumption; in the case of a person availing of service, the complaint may be of deficiency of the service provided. The Consumer Protection Act defines the term “consumer” as a person that buys goods or a hirer of service for consideration and a “complainant”to include any registered voluntary consumer association. The “complaint”could relate to unfair or restrictive trade practice or defective goods supplied or deficient service.

Public law remedy unavailable against private manufacturer or service provider
The provision that enables a voluntary consumer association to espouse the cause of an individual consumer or the body of consumers cuts short, as if by sleight of hand, the not too easy resort to joinder of causes of action by plaintiffs, contemplated under the provisions of Order 8 Rule 1 of the Code of Civil Procedure. Just as infrequent as this provision of the Code has been resorted to in India for ordinary civil actions through suits in Courts, which are perceived to be time consuming and expensive, so are the voluntary organizations making complaints on behalf of consumers infrequent before consumer forums, although perceived to assure faster reliefs, less expensively. If there is one area where class- actions have become popular in India, it is in the area of public interest litigations (PILs) resorted through writ petitions before High Courts and Supreme Court. By the very nature of a writ being possible only against State and its functionaries (subject to extracting exceptions) and not against individuals or companies, the use of PILs are not efficacious to address consumer related problems of defective products and deficient services.

Res ipsa loquitur, best instances for class action
It is not as if there have never been adequate instances that offer scope for resort to class actions under the Consumer Protection Act. This is so, even if we must resort to this genre of litigations only for cases which could be disposed of in a summary procedure, without having to go through tortuous procedures of examination of witnesses which could involve considerable time, discovery and inspection which could again mean exchange of documents and expensive forensic skills to track the wrong-doing. There are countless occasions, where a large body of persons is affected. Consider res ipsa loquitur instances, where as the saying goes, the act of negligence speaks for itself. Cases of medical camps, where due to poor medical care and facilities, cataract operations result in blindness to patients undergoing the medical procedures; Of harmful drugs that maim or kill which are dispensed recklessly without proper medical trials; vaccinations due to contaminations in large batches of bottles and vials that result in deaths of babies; hooch tragedies, where consumers of illicit arrack, mostly poor people die tragic deaths at the hands of illicit bootleggers; corporate frauds admitted by the CEOs as such, resulting in prodigious financial loss to investors in shares in companies; noxious fumes emanating from factories that flout brazenly pollution control laws or industrial effluents that pollute water table and affect health to persons living around the area of the factory. All are cases just waiting to be easily identified and pursued through complaints before consumer forums.

Lessons for the Indian milieu from global regimes
Class litigation has enormous advantages in the Indian situation. Several suits or claims in various courts could be encapsulated in a single collective action, saving court’s collective time spent through several litigations in several courts. It helps to cut costs by engaging services of less number of lawyers. Even a poor litigant could have the benefit of engaging the services of the most competent and even expensive legal counsel. A homogenous decision is not merely more efficacious but most just that similar claims are addressed across the board to obtain the same result. The likelihood of misuse could be effectively controlled by the experience gained through some of the practices in other countries.

U.S.A
In U.S, in the context of Private Securities Litigation Act, 1995 codified into Title of United States Code, the Court would appoint a lead plaintiff ( usually a large institutional investor with greater sophistication to devote to the action than an individual plaintiff) to oversee the conduct of every securities fraud class action. The appointment is designed to ensure that the action is adequately monitored and that any settlement is in the interest of the investors rather than the lawyers. The practice of contingency fee in US that gives rise to fantastic claims could be controlled by strictly enforcing the law against such practice.

Australia
In Australia, in a recent case alleging corporate fraud against the Centro Group, for indulging in inadequate and misleading information about its financial condition of the company, Justice Finkelstein, the judge dealing with the case constituted a litigation committee to decide which lawyers and litigation funders should take over the conduct of the class actions. Interestingly, here the court retained the power to decide who the attorneys shall be to conduct the litigation. In India, the respective Bar Councils operating in the States could be given the responsibility of creating an approved panel of attorneys or advocates that would hold the license to institute class actions.

Spain
In Spain, the 1/2000 Civil Procedure Act sets forth a class action regime, by virtue of which Consumers Associations are entitled to file a lawsuit on behalf of an undetermined number of consumers for those damages allegedly caused to them. Any favorable decision issued by the court will benefit all the undetermined consumers that are represented by the Consumers Association, regardless of whether or not those consumers are affiliated to the plaintiff Association. The undetermined consumers will afterwards be entitled to execute the decision on their own behalf. Such like provision is not new to India. The Land Acquisition Act provides under section 28A the right to a landholder who has lost the property in land acquisition to claim the benefits of enhancement of compensation on a fast track, by applying to the Collector, even if he had missed the bus initially by not filing a claim for enhancement and seeking for reference to civil court, subject only to proof that his acquired land was comprised in the same notification.

Canada
It is possible that the tort feasor may force a litigant not to resort to class actions by introducing arbitral clauses in the contract. In 2003 Dell Computer Corporation posted incorrect prices on its web order pages for two products. Dell corrected the error three days later, but not before hundreds of consumers had placed online orders at the posted prices. Dell declined to process the orders. This resulted in an attempt by the Union des Consommateurs (a non-profit organization) to initiate a class action against Dell in the Superior Court of Québec. Dell resisted the proposed class action by invoking the arbitration agreement contained in the terms and conditions page hyperlinked to its website order pages. Dell applied to have the claim referred to arbitration and to have the application to institute a class action dismissed. The individual arbitral referrals are expensive and a disincentive to litigate. Dell failed at first instance and again on appeal, but prevailed on further appeal to the Supreme Court of Canada in Union des consommateurs v. Dell Computer Corp. ("Dell")(2007), when the court ruled that the arbitration clause for each individual offeree ousted the scope for collective action. After the events that gave rise to this dispute took place, Ontario and Québec enacted legislation prohibiting consumer agreements from requiring that disputes arising out of them be submitted to arbitration (s. 7(2) of Ontario’s Consumer Protection Act, 2002, and s. 11.1 of Québec’s Consumer Protection Act). In India we could make do with specific provisions in the Arbitration and Conciliation Act and the Consumer Protection Act that would not bar prosecution of class litigations through arbitral clauses.

U.K. & Italy
In England and Wales, under Part 19 of the Civil Procedure Rules, the court has the power to make a Group Litigation Order (GLO) to manage cases on an “opt in” basis, where there are a number of claims giving rise to common or related issues of fact or law. On December 21, 2007, the Italian Parliament passed the Budget Law 2008, which finally introduced into the Consumer Code a specific statutory provision (Article 140-bis) giving certain associations the capacity to sue collectively for tort liability, unfair trade practice, and anti-competitive behavior. The new law became effective on July 1, 2008.Under the new class-action law, bodies acting on behalf of consumers or investors will be able to obtain a declaratory judgment of the right to obtain compensation and the refund of sums due.

Conclusion
Any consumer movement obtains impetus only through collective actions. It is the unity of purpose secured through funneling of independent initiatives that could sharpen the edge of attack against errant manufacturers and retailers of consumer products and negligent service providers and make them responsive to consumer needs. Welcome class actions in consumer forums; enter an era of quicker and cheaper remedies for larger sections of people.