Friday, August 20, 2010


The Public Interest Legal Support and Research Centre is organizing its biannual conference on Refugee Law and Policy. The conference focuses on the North Eastern States of India and seeks to explore the issues facing refugees in the North Eastern states of India in the context of Indian State Policy on refugees and the various state legislations on immigrants, discussed within the parabola of the need to devise an effective refugee protection regime in India that is consistent with the international practice in humanitarian law.

Date: Saturday, 4th September, 2010

Venue: Casuarina, India Habitat Centre, Lodhi Road, New Delhi

Time: 10 a.m. to 4 p.m.

Materials relevant to the conference will be made available on this space shortly.

We would like the conference to be a forum for international participation and for voicing the concerns that members of the international community may have on India's refugee policy.

Research scholars, academics, students and policy analysts interested in the issues typical to the North East refugee crisis may find attendance and participation at this conference insightful.

Contact: Rashmi Raman, PILSARC - /

Thursday, August 19, 2010

Reservations Forever: Is there no limit?

Reservations Forever:
Is there no limit?

Rajeev Dhavan

Far from being inspired by social justice, reservations have become a political toy to support vote banking. Over the last fifteen years, politicians have enacted five constitutional amendments to reverse Supreme Court judgments. In turn, the Supreme Court has lost its way – seemingly backing off, backing down, giving up.

The latest Supreme Court endeavour is Chief Justice Kapadia’s order (also for Justices Radhakrishnan and Swatantra Kumar) permitting Tamil Nadu (TN) to continue 69% reservation for Scheduled Castes and Tribes (SC/ST) and Other Backward Classes (OBC) under its 1993 legislation, but asking TN to review its decision on the basis of quantifiable data. This seems surprising because it was Justice Kapadia’s own judgment in Nagaraj’s case (2006) which jettisoned reservations within a strict discipline before reservations were made and not as a statistical afterthought.

The judicial effort to discipline reservations goes back to 1951, but in our context began its rigorous journey from Justice Gajendragadkar’s judgment in Balaji (1963) establishing the 50% norm and striking down Mysore’s 68% reservation. Apart from SC/ST, the reservation provisions for OBCs were designed by the Constituent Assembly for the ‘south’ states which had practiced reservation for decades to cover traditionally recognized OBCs in their states. But to the ‘old’ OBCs were added ‘new’ OBCs. The new OBCs were discovered in the ‘north’, especially in the states of Bihar and UP resulting in the triumph of the Yadavs – Laloo in Bihar, Mulayam in UP and others elsewhere. Now everyone is busy discovering new OBCs. While the Karlekar Commission (1955) did not want to open the OBC cauldron, the Mandal Commission (1980) was only too glad to do so. The Mandal report was a hot potato which the Congress avoided and V.P Singh embraced in 1990 with disastrous results. The hitherto docile ‘merit students’ exploded into riots. Enough was enough. Peace was restored. The Supreme Court contributed to devising the peace process by a balanced formula in the Mandal case (1992) reiterating the old Balaji 50% limit for reservations. No doubt the 50% limit can only be crossed for compelling reasons. But this going beyond 50% was really for tribal states and not as a general political excuse to garner votes, which it has become.

Meanwhile, Congress realized that it had been upstaged by other political parties in using and manipulating reservations for votes. From 1995 – 2005, it was party to the 77th, 81st, 82nd, 85th and 23rd constitutional amendments for SC/ST and OBC reservation – realizing that the SC/ST constituency was also slipping from its hands. This is self evident from the parliamentary debates – a fact fully analysed in R. Dhavan’s: Reserved (2008).

What is significant is that these amendments were challenged in Nagraj (2006) concerning reservations in the civil services, where the lead and only judgment was by Justice (now Chief Justice) Kapadia. Earlier in the 11 judge bench decision in TMA Pai relating to education, the court fixed 50% as the upper limit which could be crossed only if there were justifiable, compelling circumstances. In fact, it would be fair to say that every percent reservation over 50% needs total comprehensive justification.

As it happens Nagraj (2006) was a written by Justice Kapadia. It concerned examining whether the constitutional amendments of 1995 – 2000 violated the ‘basic structure’ of “equality”. Read between the lines, it was a brilliantly statesmanlike decision. It told Parliament that its amendments were valid since they did not guarantee reservations but simply enabled them. It told merit candidates that equality was part of the basic structure of the constitution and, therefore, any exercise of the power of reservation would be subject to the 50% rule, the creamy layer, extent of backwardness and demands of the efficiency, in accordance with the criteria of reasonableness and compelling necessity.

Why did Justice Kapadia not follow his own judgment in the case of the Tamil Nadu’s 69% reservation? It is true that the Tami Nadu statute had been given extra constitutional protection. But after Justice Sabharwal’s judgment in Coelho’s case (2007), this extra protection had been ripped down. The Tamil Nadu statute was of 1993. It was 17 years old. A mandatory exercise of re-examination was necessary. This was not done. Under Justice Kapadia’s own test, Tamil Nadu’s 69% was beyond 50%. No compelling necessity had been shown. The creamy layer test is that those SC/ST or OBC is that who are no longer backward are disentitled to reservation. This has not been applied to SC and ST in Tamil Nadu. No considerations of efficiency have been considered.

One way of looking at Justice Kapadia’s decision on Tamil Nadu reservations is that, Tamil Nadu’s law enables 69% reservation. Before implementation, the ‘Nagraj’ restrictions of 50%, creamy layer, efficiency etc. would apply with full rigour as a prelude to implementation. But this turns Justice Kapadia’s own Nagraj decision upside down. The Tamil Nadu statute was all ready for implementation. The 69% had been, and was, being implemented. None of the Nagraj tests were being applied. This, it seems that Tamil Nadu had a free run subject to judicial advice that it must examine the extent of backwardness. But if the 69% statute was declared valid by the Supreme Court, no High Court could ignore it and all governments would implement it. The cart was before the horse and reservations at 69% would remain where they were.

While all that I have said sounds full of technicalities, in fact it is not so. Few are against reservations in toto. I am not against reservations. They are necessary for social justice and to share the power of the state with SC/ST and OBCs. But we have to find a balance. Spurred on by vote bank considerations, politicians do not want to find a balance. It has been upto courts to do so. The 50% marker came in 1963. The excursion of the creamy layer came for OBCs in 1992 and 2006 for SC/STs. Efficiency was emphasized in 1992 and against 2006. Reservations in super-specialties, technical areas or the army are not permissible. Both, the imposing of reservations and the breach of the 50% requirements are subject to compelling necessity and reasonableness. The creamy layer test was absolute. Efficiency had to be considered. Developed for 5 decades, these tests provide a balance so that the competing claims of reservations and merit are satisfied. Politicians abhor this balance because it interferes with their political vote-gathering largesse.

The 69% quota means that merit candidates have only a 31% chance; and SC/ST and OBC candidates can also compete for these 31% seats. This violates equality of opportunity. It also gives efficiency a go-by by disproportionately discounting merit.

India’s Constitution has both political as well as justice texts. If the justice texts were not there, majorities in legislatures would do whatever they want in the name of a crude numerical majoritarianism without reserve. The reservation debate has exhausted itself. Tamil Nadu’s 69% statute has been wrongly declared valid. But all is not over. The Supreme Court and Madras High Court can still insist that the amendment should not be implemented without looking at backwardness, the creamy layer and efficiency in terms of reasonableness and compelling necessity. But will they?

Wednesday, August 18, 2010

Lokayukta: A damp squib

Lokayukta: A damp squib

Rajeev Dhavan

Is the Lokayukta which was designed to expose maladministration and corruption a damp squib? Karnataka’s Lokayukta, former Supreme Court judge, Santosh Hegde’s attempted exposure of Bellary and other mining scams revealed losses to the exchequers of Rs. 80,000 over five years. The affected powerful Reddy’s and others hit back. On 23 June 2010 Hegde resigned, rejecting the Governor and Prime Minister’s request to resume his post. But on the BJP leader L.K. Advani’s persuasion returned as Lok Ayukta on 3 July. Political partisanship mars the political objectivity of a Lokayukta.

Hegde was never a Hercules, but undertook a Herculean task which eluded his otherwise undistinguished but upright career as lawyer and judge. The immediate cause for Hegde’s resignation was the suspension of R. Gokul, Deputy Conservator of Forests who Hegde deputed to investigate the disappearance of 5 lakh tons of iron ore impounded at Belekiri and Karwar ports. Hedge resigned because felt he could not protect his own investigators. His resignation was an embarrassment. His Lokayukta predecessor, Justice Venkatchala had conducted many ‘televised’ raids, but no prosecutions were followed under the Prevention of Corruption of Act 1988. The shameless were not ashamed; the corrupt not brought to justice.

Are Lokayukta’s or Lokpal’s (called Ombudsman or Parliamentary Commissioners in other countries) simply a window-dressing with no cutting edge? Of Swedish origins and popular in some European states, it was grafted onto a parliamentary democracy in New Zealand (1962), England (1967) and Australia (1976). India’s, story is sadder. After recommendations by Nehru (1962) and the Administrative Reforms Commission (1966), attempts to introduce a Lokpal for India’s Union government failed in 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001. Why? No body wanted it. The bureaucrats wanted it to monitor politicians. Politicians wanted it, to monitor bureaucrats. The Prime Minister did not want to be included at all. Should the Lokpal investigate only ‘corruption’ or also ‘maladministration’? Every Lokpal proposal was successively derailed by successive Union governments.

Meanwhile Lokayukta’s were established in many states including Orissa (1970, but abolished 1993), Maharashtra (1976), Bihar (1973), Rajasthan (1973), MP (1981), AP (1983), HP (1983), Karnataka (1985), Assam (1986), Haryana (1996), Delhi (1996). Mostly Lokayuktas examined complaints against political functionaries; the–Upa–Lokayuktas against the civil service. We know little about how these State bodies work. The public is kept in the dark.

But the record is abysmal. In 1976, two ministers found guilty of malpractice countered by filing cases in the High Court against the Lokayukta (a former Chief Justice). Allegations in court were made against the Orissa Lokayukta for being pro-government. Despite clear Lokayukta findings in the Bhopal land allotment scandal in 1982, the government did nothing. This was equally true of findings against ministers in MP (1983) and AP (1986). In Madhya Pradesh the much respected G.P. Singh resigned due to disrespect and inaction. In 1985, cases were filed against the Lokayukta to earn the ire of the Bombay High Court. Populous UP registered startlingly few complaints. Disposal is bad. In 1999, the Supreme Court asked why Lokayukta’s were not appointed in Bihar for three years or set up in other states. In 1999, Justice M.S. Sharma, former Lokayukta of Rajasthan, whose 70 odd reports against politicians were ignored, wanted Lokayuktas abolished. On 29 June 2010 Haryana’s Chief Minister refused information to his Lokayukta, Justice Sud.

Lokayuktas have become moribund institutions. Few complaints are filed. Many are kept pending, findings not acted upon. Hegde knew this before accepting the post-retirement post of Lokayukta in Karnataka to make the difference. As a judge, he could issue contempt notices, as a Lokayukta he is powerless. In fact, Lokayuktas do not have strong independent investigative machinery and rely on bureaucrats who can be pressurized by government, as exemplified by Hegde’s own investigation into the mining scandal. Second, the powers of Lokayuktas are only recommendatory. Cogent reasons are not required for rejecting Lokayukta recommendations. Third, the Lokayukta’s have not inspired confidence in the people who prefer using the ‘right to information’ to empower themselves into campaigns with media support.

Fourth, ombudsmen were designed for small countries where political integrity and public morality results in swift action by government and resignation by public servants. In India’s never-say-die politics, no one is guilty as long as they evade the final decision.

Fifth, at a deeper level, in a parliamentary democracy, ministers (and bureaucrats through them) claim to be constitutionally responsible to the legislature (Art. 75, 164), not to some statutorily propped up Lokpal or Lokayukta with recommendatory powers. In Indian political practice, this power to “recommend” is merely a power to “suggest”. Otherwise, it is argued the administration will be answerable to the Lokpal not to the legislature. The truth is that India’s politicians and bureaucrats hate being answerable to anyone other than themselves. They conspire to nullify Lokayuktas into an empty and unwanted experiment.

Sixth, in some senses, the National and State Human Rights Commissions (NHRC and SHRC) and other SC, ST and Womens Commissions are also in the Lokpal-Lokayukta-Ombudsman mould. The only difference is they deal with specialized areas of violation of human rights. Why does the NHRC work better as a human rights ombudsman? One reason is its prestige and governments fear of human rights violations being exposed. But there are other practical reasons for its partial success.

Under the Chairmanship of Justices Venkatachaliah and Verma, the NHRC asked for and obtained an independent investigation machinery firmly under its own jurisdiction. In the Hegde’s resignation case, the investigating civil servant was controlled by Ministers. The NHRC built up a rapport with Ministers and officials to ensure that the recommendations were treated as decisions not suggestions.

Seventh, what is missing from the armoury of Lokayuktas is an independent power to record FIR’s with the police and to prosecute against without the sanction of governments. Today bureaucrats are protected by the Single Directive(SD) even though the Supreme Court invalidated the SD in the Hawala case (1998). But to proceed further, even after investigation, trials require the government’s sanction. The law needs amendment so that corruption trials can proceed on the sanction of the Lokayukta.

As long as Lokayukta’s do not have the power of independent investigation, filing criminal complaints and sanctioning trials, the institution will just growl without efficacy.

But, back to Hegde’s resignation which woke up every body. Rejecting the advice of the Governor, Prime Minister and people from other walks of life, he withdrew his resignation on the advice of his ‘father-figure’ Advani who had to save the BJP supported government in Karnataka. Hegde claimed he relented for “no political reason, but because of my love and respect for Advani. Obviously, the Governor, Prime Minister and others did not command this love and respect. And what did the BJP offer? Only a more kindly and effective response to his work. But, it is be a constitutional usurpation for Advani to interfere with Karnataka’s governance. The style and substance of the ‘Hegde-Advani’ deal is unworthy. In 10 July 2010, BJP’s Karnataka government prepared only minor changes to the Lokayukta Act. Top bureaucrats are included, but ministers are beyond the Lokayukta’s jurisdiction who will have no prosecutorial powers. A miffed Hegde has gone on four days leave.

Hegde’s campaign started with glory, but ended with a tragic whimper. His remaining year in office will pass quickly.

Spare the Rod

Spare the Rod

Rajeev Dhavan

P.G. Wodehouse’s quip that caning “stingeth like a serpent and biteth like the adder” cloaks the real face of corporal punishment in schools (CPS). It has no foundation in law. It is a barbaric practice with little justification. Unfortunately, there are too many wrongly perceived ambiguities in the laws applied by the various States of India. Teachers who inflict CPS need their head examined for the cruel pleasure they derive from inflicting pain on hapless children in the name of discipline.

What triggered off our present discontents is the suicide of a school boy, Rouvanjit Rawla, four days after he was caned by Sunirmal Chakravarthy, the Principal of La Martiniere Boys School, Kolkata. Evidently, the cane broke, but not the punishment. The fact that the Principal says he did not know the law applicable to West Bengal is unworthy. On 18 June 2010, after intense public controversy, the Board of Governors announced that CPS was abolished in La Martiniere. Meanwhile Principal Chakravarthy is vulnerable to civil and criminal action and possible dismissal from service as recommended by the National Commission of Children’s team which also canvases changes in the Penal Code to deal with caning specifically.

As far as West Bengal is concerned there was no ambiguity in the law. In Tapas Kumar Bagchi’s case (2004) there was a clear order by Chief Justice A.K. Mathur that (i) caning should not be resorted to as a corporal punishment (ii) the Director of School Education should circulate this and (iii) schools resorting to this shall be dealt with strictly by the State Administrator. At least, as far as caning is concerned, this legal message was clear as crystal. In Rekha Bharat’s case (2009) which was a well known cause celebre, criminal prosecution was continued in a case where the teacher’s whack on the head led to the death of the child. The judges spoke of how the statements in the “case diary were quite spine chilling...One has to rub one’s eyes to be sure whether it is a crime thriller depicting the tale of a sordid killer…”. So neither La Martiniere nor Principal Chakravarthy had a leg to stand on as for as their legal excuses for their actions were concerned. Apart from an apology, the decent thing for La Martiniere to do is to sack the principal, after due inquiry, and offer both apology and compensation of at least Rs.20 lakhs, if not more.

While the Calcutta rulings are on caning and punishment resulting in death, the issue needs to be discussed on the wider considerations of the rights of the child. The Delhi High Court through Justice Anil Dev Singh struck down the Delhi School Education Rules of 1973 which dealt with “corporal punishment”. Here caning was a part of the wider issue of corporal punishment in schools.

Why Justice Dev Singh was not elevated to the Supreme Court shows faults, bias and favouritism in our judicial appointments system. Along with other visionary judgments (such as those on elections) Justice Dev Singh looked at the gruesome reported instances, examined the life and liberty (article 21) and other constitutional provisions and laid down that the infliction of pain on students through “light punishment” was also impermissible as it could “degenerate into an aggravated form”.

The Delhi Judgment rightly isolates and injuncts “physical pain”. But, after the judgment, a wider approach was implanted in section 23 of the Juvenile Justice Act, 2000 to discipline those incharge of or with control over children to protect the latter from unnecessary “mental or physical suffering”. To inflict this could attract jail upto 6 months plus unlimited fine. This is the more incisive test. In Tyrell’s case (1978) the European Court in Strasbourg discussed this threadbare. Birching was found to be a degrading punishment. But, the Court added to the repertoire of tests by further examining the mental consequences of humiliation to the child. Any punishment attracts humiliation. Shame and public obloquy come to all but the shameless. The test of the European Court was that the “humiliation or debasement involved must attain a particular level … other than the usual humiliation” flowing from being found guilty. So what was degrading was not just the painful assault, but also excessive.

Teachers, even parents, may regard this ‘humiliation’ test as going too far. Imagine a teacher who has chalk or a stone thrown at her. Prohibited from physical corporal punishment, is she precluded from sending the thrower to the corner or to stand on his chair with a dunce cap on his head? This would surely be humiliating. But, here too, some element of proportionality would decide the issue. Discipline yes. Pain no. Punishment – no more than necessary. I think the test in Section 3 of the India’s Juvenile Act of 2000 puts it well by injuncting “unnecessary mental or physical suffering” by threat of jail or fine. Teachers are allowed to impose discipline but they cannot be cruel. The nexus between Rouvanjit’s caning and his suicide cannot be wished away because the school’s Diocese Board says so.

The La Martiniere incident represents a legitimate middle class outrage. But why do these issues achieve public notoriety only when well off kids are involved. Children in cheap government and other schools are cut, bruised, damaged, killed and driven to despair by cruel and humiliating punishment every day. We cannot also overlook beatings and humiliation in the place of work. Parents feel free to punish their children – sometimes without remorse on a day to day basis. Both civil and criminal liabilities lie. Any lacunae are now plugged by the Section 23 of the Juvenile Act 2000 which is not restricted to schools but “whoever has the actual charge of or control over a juvenile or child”. This includes parents and employers alike. Parents cannot claim ownership of their children. 26 countries restrain parents and 112 countries forbid schools from imposing corporal punishment.

Unfortunately, even if the law speaks with protective concern, it remains immobilized. Children cannot go to court. Few want to go to court for them. Children cannot be protected through law circulars. The National Commission on Children banned corporal punishment in school on 9 August 2007 on the basis of the Delhi judgment and by wrongly assuming it was decided by the Supreme Court. There is little follow-up to the Union Ministry letter of 17 December 2007 against caning. The letter itself shows ignorance of Indian law but relies on the National Policy on Education (1986) and article 28 of the UN Convention of the Rights of the Child requiring school discipline to be imposed “consistent with the child’s dignity”. India’s legislation of 2000 is wider and applies to parents, guardians, store helpers, the chotus who work in tea shops and dhabhas and those in factories and hazardous trades. What is needed is a machinery of enforcement including social and legal support.

The La Martiniere incident has ruffled middleclass sensitivities. But while India pampers its richer children and pedigree dogs, most of the kids in most schools are unprotected by society and the state. The legislation is inadequate. The courts do not convict. And worse of all, the callous treatment meted to most children continues hidden from the public domain.