Saturday, February 20, 2010

The CBI Judgment

The CBI judgment

Rajeev Dhavan

Indian courts seemed to have invented a new slogan about the State police investigating serious crimes: “When in doubt, call in the CBI (the Central Bureau of Investigation)”. It is precisely this question this that was resolved by the Constitution five Judge bench in the West Bengal v. Committee of Democratic Rights judgment delivered on 21 February 2010. It was a much awaited judgment. The Mulayam Singh corruption case hinges on this issue. So also, the Moga sex scandal case – pending before the Supreme Court. Every time, the Moga case was listed, the Court adjourned to await the judgment in the CBI case. Why the Supreme Court takes so long to deliver judgments is not clear? The Narco test judgment is awaited for over two years. The Bangalore Akravaty land acquisition judgment has not arrived for one and a half years. In both cases the present Chief Justice of India presided. Judgment on the constitutionality of the panchayat amendment, argued before the Chief Justice, is delayed. Clearly, the Supreme Court does not lead by example.

The CBI judgment is clearly unconstitutional. It violates the federal framework and annihilates statutory provision on the basis that fundamental rights are at risk when the State police are corrupt or under the control of politicians. First, the federal question. Under the constitutional framework, policing is exclusively a State subject. The Union’s armed forces can be brought in to quell public order in aid of the civil power. (Schedule VII, List II, List II E 1 and 2, List I, E2A). The Constitution allows the Union to extend the powers of State police of one State to another State without the consent of that other State (List I, E 80). There is little dispute that the CBI is not an armed force or a State police. The Delhi Police Establishment Act 1946 under which the CBI is constituted is solicitous of State federalism. Under the CBI statute, the CBI cannot oust the State police’s investigative jurisdiction except with consent of the State. Thus, the Constitution and the CBI statute are crystal-clear. Only the State police and not the CBI can investigate state crimes. The CBI needs the State’s consent to do so.

If this is true, the CBI judgment is, prima facie, illegal and unconstitutional. How, then, did the Supreme Court play ‘Houdini’ to pull a federal rabbit out of the States’ exclusive hat. The Supreme Court’s assumption that its constitutional power to do ‘complete’ justice (article 142) enables such a dismantling of federalism is totally belied by its own decision in the Bar Association case (1998) which decided that the complete justice power of the Supreme Court could not violate either a statute or the Constitution.

Aware of this, the Court took refuge in the ‘basic structure’ doctrine which treats judicial review as part of Constitution basic structure. But, the Bommai case (1994) also declares federalism to be part of the basic structure. The issue was not the separation of powers, but a straightforward competition between the judiciary and state power. The Constitution sides with the federal structure and the exclusive power of the States to police investigation. The Supreme Court judges virtually set the Constitution at naught and sided with themselves to expand their own judicial power. The Supreme Court’s justification that the higher judiciary must enhance its jurisdiction to defend the fundamental rights of the people seems to be declaring that in the defence of Fundamental Rights, it can do anything and everything – even injure the federal structure.

Second, What are the limits of this power reposed in the High Courts and Supreme Court to call in the CBI. The Supreme Court feels that this power can be used only in “exceptional” circumstances. The Court was generously wide in giving considerable leeway to the Courts by stating: “This extraordinary power must be exercised sparingly, cautiously, and in exceptional situations where it becomes necessary to provide creditability and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights”. This catalogue ambiguously justifies all kinds of judicial intervention. Legal elephants can run amok with his judicial script. We are back to square one: The more things change, the more they remain.

Third, is the public interest and governance argument. It is true that State police are under the thumbs of Chief Ministers in power. Party and other hoodlums pressurize the local police. This is true of all lead cases: Jessica Lal, Katara, Mulayam, Mayawati, Jayalalitha and others. I agree that the Constitution is a dynamic document which is not a state of “becoming” not simply “being” (Justice Dwivedi in a famous 1973 case). But, is that sufficient justification for dismantling India’s federalism?

What were the options before the Supreme court ? (i) The Indian Police Act gives the State government the power of “superintendence” of the police – a power which has now been interpreted narrowly by the Supreme Court in the West Bengal Boys case. The Courts can always superintend investigation of State police. (ii) The High Court can transfer cases from one district to another within the State. (iii) Following, the Hawala case (1998) the Courts can monitor a State police investigation to when the charge sheet is filed. After that the judicial process begins. (iv) When the Supreme Court feels a case ought to be transferred to another State, it can always do so – as it did by sending the Gujarat riots case to Maharashtra, the Shankaracharya case to Pondichery and the Jayalalitha case from Tamil Nadu to Karnataka. It is now abundantly clear that the transferee State’s (and not the original States’) police and prosecutors will exclusively deal with the investigation and prosecution – much to Jayalalitha chagrin in the Shankracharya case. (v) Alternatively, it could have reposed the CBI option only in the Supreme Court. The Court did not examine these options. It chose ignored the Constitution and statutes to indulged in self empowerment.

Fourth, comes the case of the CBI itself. In the Moga police case the CBI frankly told the Court it was short staffed and busy. But the investigation was forced on it. The CBI did not credit itself in the Bofors case. When the CBI investigates political cases it inspires unease. This became apparent in the Mulayam case where it changed colour depending on when Mulayam’s party gave voting support to the Congress led UPA. The CBI is not suited for these cases. Its forte is international crime, economic offences, terrorism, smuggling and so on. The Central government wants the CBI to investigate 231 offences under the Penal code; and several others under 69 Central and 18 State acts with the consent of the States. In 2007 114 cases were sent to the CBI by courts. In December 2009, the CBI had 988 cases pending investigation, 138 cases pending sanction for prosecution. 9475 criminal cases were pending for trial. The CBI does not have sufficient staff or resources. In big political cases it flounders for posture. In the Havala and Noida scandal cases, the court’s monitored the CBI investigation to fruition.

At worst, the Supreme Court could have directed that only the Supreme Court will have the power to ask the CBI to investigate violations of fundamental rights. Alternatively, it should have looked at other solutions to monitor investigations of State police. In its efforts to empower High Courts and itself, the Court has gone over-board.

Saturday, February 6, 2010

Reservations for women


Adam and Eve were both equal. Both were thrown out of Eden into the garden of politics and power. Expelled, Adam seized the reigns of power and opportunity, marginalizing women. Success stories apart, it needs constitutional change to restore parity. Witness America’s Nineteenth Amendment to the United States Constitution in 1920 and electoral changes in English electoral law in 1928 and now India’s discontents on this issue.

India’s experiments with providing reservation have been male dominated, half hearted and lacking political will. The first experiment of providing one-third reservation through the 72nd and 73rd amendments in Panchayats has been a success. Elected women have often been harassed, humiliated and undermined, yet the panchayat reservations have mobilized women. The lack of political opposition to the panchayat reservations happened only because the option to bring in OBC reservations was conceded for reservations in panchayats.

Reservations in the State Assemblies and Parliament have suffered a different fate. This story covered the period (1996-2009) through the proposed 81st (1996), 84th (1998), 85th (1999) and now the 108th Amendment of 2008. I know from personal conversations with many in power that front bench support was never out of conviction. One politician (now in the cabinet) said to me: “We will never permit this”. Fearful of being totally constitutionally barred from 33% seats in the legislatures, the men, with notable exceptions, were strongly hostile to these changes. But they could not oppose openly because women still constituted 50% of the electorate. Thus, for most male politicians, support for women’s reservation has come from a fear of electoral backlash – and, perhaps of Durga and Kali!

A core point of resistance has been the creation of a reservation-within-a-reservation – not just for SC/STs in their quota, but also for OBCs. The OBCs had not been given mandatory (but only permissible) reservations in the panchayat amendments of 1992. In the 77th Amendment (1995), OBCs were denied promotional and consequential seniority avenues in their service and civil service careers through reservation. In the case of women’s reservations, the OBC based parties, headed by Mulayam Singh Yadav, Lalu Yadav, Sharad Yadav, Nitish Kumar and others, demanded that one-third reservation should also be compulsorily included for OBCs. Now that Nitish Kumar of Bihar has abandoned the case for reservations for OBCs, the OBC cause is lost. SC and ST are a super-classification amongst the disadvantaged; further reservations for OBCs will bring in an undesirable caste factor.

A fundamental objection to the blanket quotas for women has been class usurpation by the well off “creamy layer” women. Never was this more picturesquely illuminated than by Sharad Yadav when he spoke about the middle class baal katiya women (with short hair) hogging the quota. The left parties have been resistant to the creamy layer, even in employment matters. So, the baal katiya argument (true and impressive as it was) disappeared from the parliamentary radar.

Alternatives to quotas
The European and other nations have discarded the quota option and opted for political parties redressing the dis-balance between men and women in their legislatures. To this extent, England and other countries have achieved considerable success through political parties adopting voluntary method quotas. An in-between alternative suggested by the Manushi group (2000) and former CEC, M.S. Gill (also in 2000) was for compulsory political party nominations of one-third women. Manushi added that it should be ensured that the weak constituencies are not allotted to women! This proposal had continued support from two MPs Shri Virendra Bhatia and Shri Shailendra Kumar in the Standing Committee 36th Report (17th December 2009) supporting a 20% target for political parties. This proposal is (to borrow Justice Krishna Iyer’s phrase) “neither fish nor fowl nor good red herring”. What will happen to a political party that does not meet its target? Will it be struck off the register of political parties? This proposal is interesting as a voluntary measure. As a compulsory measure, it is hopelessly misconceived. Nothing prevents a political party from adopting a voluntary target for themselves. At present the maximum representation of women in the last two parliaments has been 14%.

Problem areas
The rationale for women’s electoral quota may well have to be synthesized with the basis of the original Constitution of 1950, reversing the British policy of invidious quota policy along religious, caste and tribal lines. On 16th June 1949, India’s Constituent Assembly opted for universal suffrage for all. This was a historic decision. But quotas for SC/ST and Anglo-Indians in India’s legislatures were permitted on grounds of three D’s (discrimination, disadvantage and disempowerment). There is no dearth of people in India who would fit this bill. Why women? Some women are privileged. The privileged will dominate. But imposing “creamy layer” for electoral purposes is not workable either for SC & ST quotas (where the leadership of the best will be lost) or otherwise. Broadly, the original dispensation based on three D’s applies to women generally.

The provision for reviewing reservations for women after 15 years is consistent with the review provision of 10 years for SC/ST. At that stage, discussion can center on whether (i) the quotas for women should be continued; or (ii) increased to 50%; or (iii) reduced to 25%. After 15 years, in 2025, Parliament will not disturb vested interests. Indian men will seek to try and control and dominate women MPs as they try in the case of panchayats. But Indian women MPs and MLAs have shown their mettle.

There is an argument that there will be 100% reservation in at least one constituency in every state. Ironically, in two member states in the Lok Sabha there will be 0% reservation in the third election. In the 100% case, this is a logical effect of the quota. However in the 0% case, only SC/ST women will be eligible for two elections, with general merit candidates being eligible only 10 years later. In single member states, SC/ST turn will come in the first years; and thereafter after 10 years. Who can nurture a constituency under these circumstances? As between SC and ST inter se, it is not clear how the quota will be adjusted.

Finally there is the lack of what lawyers call a "non-obstante clause". This simply means that each clause of the amendment should read “Notwithstanding anything contained in the Constitution…”. This is necessary to obviate challenges on grounds of violation of the equality provisions of the Constitution (Articles 14 and 15). No doubt Article 15(3) declares that special provisions can be made for women and children. But the electoral quota for women is super-special and precaution is necessary. Already, the Rajasthan High Court has correctly invalidated additional reservation for women. The hands of wayward judges with paternal minds should be tied down.

Despite its faults, this proposal should be supported and also be extended to the upper house. At present, the future of the 108th Amendment hangs on a slender thread, depending on smaller parties for support. With a gestation period of 14 years, the proposed amendment to secure women’s reservation in legislatures is a new experiment in democracy.

My Name is India


The Thackerays have dared India’s governance to take action against them at its own risk. What immunizes the Thakerays from the law to make them invincible? Certainly not the protection of Lord Shiva. Nor, indeed, are they the new ‘freedom fighters’ for Maharashtra. Political cowardice runs through the lumpen support – with women at the barricades protecting the men, and the men insulating their masters. Can this form of disruptive and divisive outrage which results in theatres closing down and brings fear and violence in the streets to Mumbai’s minorities and migrants ever be contained by the law? Can these new forms of political blackmail silence the rule of law?

India has a colonial system of public order and censorship superimposed on a democracy. It contains ample police powers to patrol Mumbai, arrest the Thackerays for provocative ‘violence’, bind them to keep the peace under the Criminal Procedure Code (CrPC), book them for several offences under the Indian Penal Code (IPC) including promoting enmity amongst groups (section 153A), prejudicing national integration (section 153B), deliberately and maliciously outraging religious feelings (section 295A), criminal intimidation to insult, injure and cause public mischief, death or grievous hurt (sections 503-506), and subject them to civil suits for vicarious liability and perpetuating constitutional torts against peoples’ civil liberties, freedom of movement and right to settle anywhere in the country. Provocative publications inviting the above can be banned (section 95 CrPC). Colonial governance confined Gandhiji to jail for nuisance; and before he became Prime Minister, Nehru had spent 10 years of his life in jail. India may refuse to use this full armoury of law against her own people for good reason. But can it stand idly whilst the very basis of constitutional governance is being shaken?

The contrasts are clear. The massive criminal complaints against Hussain. The cases filed against Khushboo, against sociologist Ashis Nandy and historian D.N. Jha, against Laine’s work on Shivaji. The ban on Sahmat’s poster on the Ramayana – later absolved by the Delhi High Court; Nasreen’s Lajja and the Tamil film Kaatrukkena Veli. Along with this is the social censorship by Hindu fundamentalists on the filming of Water. Most significantly, the Sena’s own censorship of those who do not seek the blessings of the Sena Supremo – as did Michael Jackson, Amitabh Bachchan, Karan Johar and others. Now, the Sena wants to make a further inroad by distinguishing between content censorship and person censorship. What Bal, Raj and Uddhav Thackeray are saying is that they will not just censor the content of movies, but also the films of any person who disagrees with their policy on a Marathi Mumbai. On this list stands Sachin Tendulkar, who dared to say he was an Indian first and of course Shah Rukh Khan, the release of whose ‘My Name is Khan’ is threatened with peril. It is thus clear that the policy of the Sena is (a) pernicious, (b) discriminatory and (c) bathed in hypocrisy to take advantage of the very right to speech that they deny to others.

First, let us deal with the exhibition of ‘My Name is Khan’. It simply must take place. Those who do not want to see it, need not do so, but no movie-viewer can be coerced; and no theatre can be forced into closure. Voluntary boycott, yes; forced closure, no. Any conspiracy to the contrary is criminal intimidation. Chief Minister Ashok Chavan is under a legal duty to protect all theatres. In Shankarappa’s case (2001), the Supreme Court declared that once the statutory censorship has cleared a film, complete protection has to be given to the theatre and viewers. Scared theatre owners must indicate who is pressurizing them. The Union and State Governments must make a declaration to fulfill the Supreme Court’s direction. If the Sena is cowardly, it will use covert measures to prevent viewing. But if it claims courage it must openly declare its policy of criminal intimidation and be prepared to go to jail. What is at threat is the very basis of free speech in India’s democracy.

Second, the Sena’s offensive against alleged anti-Marathi attracts offences of promoting enmity, national integration, and criminal intimidation. Offences have to be registered by the State of Maharashtra. In any event, cases be filed all over India (as they were against Hussain) calling upon Thakeray and Sena spokesman to answer wherever a cause of action arises.

Third, select editions of Samna that contain such exhortations must be duly prosecuted. Such bans and forfeiture are possible and can be put into immediate effect as was done in the case of Laine’s book and Sahmat’s poster. Let this be done by every State of the Union, wherever the edition finds circulation. Let the Indian federation join together in this, as was done to prevent Modi’s induction of RSS in Gujarat’s administration.

Fourth remains the question of de-registering Shiv Sena and Maharashtra Navnirman Sena (MNS) as a political party. This has to be handled carefully so that party political democracy is not hurt in the process. In the Congress case (2002), the Supreme Court denied to the Election Commission (EC) the power to de-register parties who simply declared policies inimical to the Constitution which they have to statutorily declare under section 29 of the Representation of Peoples Act (1951). Sena and MNS clearly do not believe in the constitutional right of non-Marathis to migrate and earn their living in Mumbai, except as second class citizens. They should openly incorporate this in their party constitutions and formally declare this policy to the EC. This is because the Supreme Court has clearly indicated that the EC can effect such deregistration where a political party obtains certification under section 29 by fraud or consciously abjures by self declaration its duty to follow India’s Constitution or due to any other fraud that is self-evident. All that remains is the Shiva Sena and MNS to put its political fortunes where its mouth is. However, since these parties are seeking vote bank opportunism, they may lie low on truth.

Anyone who believes in India’s democracy would be loathed to suppress views, dissent and opposition. We must tolerate differences of opinion, harsh, annoying or even provocative speech. But, where such behaviour amounts to threats of violent criminal intimidation, democracy has to defend itself through rule of law, lest the very foundation of democracy is challenged. These creeping inroads into Indian governance will grow like a cancer unless nipped in the bud by the Union, state governments, parties, groups and individuals who want to protect India from this entropic disease.