Sunday, November 17, 2013

Judges Appointment Commission - A critique.

Hello people, its been a long time. Here is a post on the proposed reforms to judicial appointments in India, slightly long but hopefully worth its salt. Please enjoy.  

 
Introduction

The appointment of judges to the Supreme Court and the various High Courts(the Higher Judiciary) is governed by the provisions of article 124 and 217 of the Constitution of India respectively. The appointments are made under the seal of the President of India after consultation with the Chief Justice of India, and such other Supreme Court and High Court judges as is deemed fit. The Supreme Court in the various ‘Judges cases’, has held that the opinion of the Chief Justice of India along with the two other senior most judges(The Collegium) of the Supreme Court, is binding on the President.

The Government of India under the proposed Judges Appointment Commission Act(hereinafter JAC Act), seeks to change this system of appointments to the Higher judiciary. It is proposed that, a Judicial Appointment Commission be set up for proposing the names of appointees. This present article is an attempt to critically analyze this proposed legislative enactment.


Judicial Appointment Commission: The Law.

The JAC Act provides for the formation of a Judicial Appointment Commission (hereinafter referred to as JAC) which is to replace the Collegium of Judges from the Supreme Court, in giving advice to the President of India regarding judicial appointments. This Commission is to be chaired by the Chief Justice of India, and will consist of the following members, The Chief Justice of India(ex-officio); Two other senior most Judges of the Supreme Court (ex-officio);The Union Minister of Law & Justice (ex-officio); Two eminent persons, “to be nominated by a collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of People.”

It should be noted that in case of appointments to the High Courts the JAC is required to elicit the views of the Chief Minister, the Governor and the Chief Justice of the concerned High Court. These views are to be given in writing.

The JAC also has the powers to make its own rules and regulations regarding the method of discharge of its functions under this Act.

The JAC Act is coupled with the Constitution (120th Amendment) Act, which gives constitutional validity to the opinion(s) of the proposed JAC. Interestingly, it also provides for insertion of a new article in the Constitution which is to be discussed in a later part.

Thus, we have seen the proposed legislative and constitutional provisions for implementation of the JAC.

Judicial Appointment Commission: The Policy Rationale.

The rationale for setting up of the Judicial Appointment Commission is stated as follows in the statement of objectives of the 120th Constitutional Amendment Act,

3. As regards the appointment of Judges of the Supreme Court and High Courts, the Supreme Court, in the matters of the Supreme Court Advocates-on-Record Association Vs. Union of India and its Advisory Opinion 1998 in Third Judges case, had interpreted articles 124(2) and 217(1) of the Constitution with respect to the meaning of “consultation” as “concurrence”. It was also held that the consultation of the Chief Justice of India means collegium consisting of the Chief Justice and two or four Judges, as the case may be. This has resulted in a Memorandum of Procedure laying down the process which is being presently followed for appointment of Judges to both the High Courts and the Supreme Court. The Memorandum of Procedure confers upon the Judiciary itself the power for appointment of Judges.

4. After review of the pronouncements of the Supreme Court and relevant constitutional provisions, it was felt that a broad based Judicial Appointment Commission could be established for making recommendations for selection of Judges. It would provide a meaningful role to the executive and judiciary to present their view points and make the participants accountable while introducing transparency in the selection process.

6. The proposed Bill would enable equal participation of Judiciary and Executive in appointment of Judges in higher judiciary and make the system of appointments more accountable and thereby increase the confidence of the public in the institution of judiciary.


Thus, it is clear that this is an attempt by the Executive to increase oversight over the judiciary. We have thus seen an overview of the proposed policy of establishing of a JAC for appointments to the higher judiciary. The researcher in the next segment will discuss the possible effects of this move by the Union Executive.


JAC: A move towards Judicial (in)dependence?

Independence of the judiciary is one of the necessary supporting pillars of a democratic system, a system based on the contours of constitutionalism and the rule of law. This is so because in Constitutional democracies, the higher Judiciary is not only the upholder of Constitutional values, but is also duty bound to enforce the contours of rule of law and justice. One of the ways of ensuring this independence is to minimize the executive control of judicial appointments. The Supreme Court keeping this in mind clearly stated in the Third Judges Case[1], that the executive is bound by the opinion of the Collegium in regards appointment and transfer of judges in the Higher Judiciary. This and the earlier decisions in the various Judges cases, are to be seen in the background of the excesses against the judiciary during the turbulent Emergency times.

The Collegium system of judicial appointments has been criticized on various grounds viz., that it goes against the tenets of separation of powers; its a clear case of judicial overreach; it has led to rampant favoritism and judicial corruption; and is responsible for the supposed ‘falling’ standards of our judiciary.

The proposed JAC is to consist of the present day Collegium alongwith the Minister of law and justice and two independent members, who are selected by the PM, Leader of Opposition and the CJI. So this is a 6 member commission, with 3 judicial members, one executive member, and two independent members. At first sight this seems to be an acceptable proposition which will not greatly undermine judicial independence. But, the following points need to be analyzed before one comes to any conclusion,

Firstly, the two independent members are to be selected by a committee consisting of the Prime Minister, the Leader of Opposition and the CJI. This committee though consisting of important constitutional functionaries, is still in absolute numbers controlled by the legislative and executive wings.

Secondly, though the CJI is the chairman of the committee, it is to be noted that his exact position vis-à-vis the other committee members is not defined.

Thirdly, there is no description as to how the Committee will decide on the names to be recommended, viz. whether it will have to be a unanimous choice, or a mere majority of numbers.

Lastly, what is the position of the JAC vis-à-vis the President? Is the opinion of the JAC binding on the President, or can the President act independently of the opinion given by the JAC?

Thus, as is clear from the above issues, the proposed JAC system is fraught with loopholes that can be used by the executive to slowly undermine the independence of the judiciary.

It should be remembered that its not the times when all functionaries are working properly that the strength of a system is seen, but its in times of crisis, when these functionaries malfunction, that the real strength of a system is seen. Therefore, it is imperative to create a system with minimum loopholes and maximum safeguards, both of which seem to be absent under the proposed system.

JAC: The Constitutional Question.

As already discussed above the current system of judicial appointments is governed by the provisions of articles 124 and 217 respectively, as interpreted by the Supreme Court in the various Judge’s case(s).

The proposed system of JAC on the other hand is accompanied by a Constitutional Amendment which provides for the insertion of the following article,

“124A. (1) There shall be a Commission to be known as the Judicial Appointments Commission.

(2) Parliament may, by law, provide for—

(a) the composition of the Commission;

(b) the appointment, qualifications, conditions of service and tenure of office of the Chairperson and other members of the Commission;

(c) the functions of the Commission;

(d) the procedure to be followed by the Commission in discharge of its functions;

(e) the manner of selection of persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts; and

(f) such other matters as may be considered necessary.”

It also makes the requisite changes to the wordings of the various articles to allow for the JAC to recommend names for appointments and transfers in the higher judiciary.

It is pertinent to note that we are hereby moving from a system of appointments governed solely by Constitutional provisions to a system where it is governed merely by a legislative enactment. The difference between these two systems is that a change in a constitutional provision can only be undertaken by a constitutional amendment, which requires a super majority of two-thirds of members in both houses present and voting alongwith ratification by half of the state legislatures(in the case of article 124 and 217). Whereas any changes under the new system can be undertaken by a simple legislative amendment which requires a mere simple majority. Thus, this change can fundamentally alter the separation of powers in the Indian scenario in the favour of the executive.


Conclusion

The present policy initiative is admittedly an attempt to make the appointment process more participatory and open to scrutiny. At a prima facie level, any move towards an more participatory and open system within a democracy is a welcome step. Such moves are especially welcome in times where the nation is beset with corruption, official apathy and overreach. The Higher Judiciary though still respected by the general populace, is fast losing its sheen due to the endemic delays and decay of the system. One of the prevalent populist explanations for this gradual decay in the judicial system is the opaque system of appointments being followed by our judiciary. Thus, by populist standards this seems to be a laudable objective that is being pursued by the Executive.

This intent though praiseworthy in theory has to be looked at carefully to understand the possible undercurrents. The Higher Judiciary in the recent years has taken a proactive role and has made judicial activism the buzzword of its existence. The Higher Judiciary has been tightening the screws over the Executive in all instances where the Executive is shown to be lax towards its functions. Be it allocation of natural resources, conduct of elections, et cetera, the Courts have been taking strict activist stands against the Executive. Thus, this move towards reform of the judicial appointment process needs to be looked at and deliberated with care, as it might be a move by the Executive to usurp excessive powers vis-a-vis the Judiciary.

As a closing comment I will like to state that this reform is not supported neither by the higher judiciary nor the Bar in general, the two biggest stake holders in this reform. Further, the reluctance of the judiciary in accepting this reform, might result in a basic structure challenge being upheld against the proposed reforms, thus leading to a damaging confrontation between the Executive and the Judiciary.

In the next post, I will propose some changes to address the above raised concerns. Till then adieu.






[1] In Re Special Reference, AIR 1999 SC 1.

Friday, May 10, 2013

Prior Sexual History in Rape Trials - Towards further legal reforms.

Today while going through the various dailies I came across an article about the Delhi Special Court disallowing questions about a rape victims sexual history. This was in the proceedings of the Delhi Gang Rape case. The piece can be accessed here.

This piece seems to bring out an important question to my mind, as to what is the legal relevance of a rape victim's previous sexual activity, in a rape trial. The 2013 Criminal Law Amendment, clearly states that a woman's prior sexual history will not be looked at while determining the question of consent. It should be noted that till 2003 the Indian Evidence Act, allowed the raising of a woman's prior sexual history to question her credit-worthiness. The repeal of section 155(4) in 2003 disallowed it, and this when combined with the 2013 amendments clearly suggest that the Courts should not under any circumstances and in any form give credence to prior sexual history of an alleged rape victim, in the rape trial.

It is important to note that even after the 2003 amendment, the medical reports continued to mention the results of the two finger test and the moral judgments thereon. This is a practice that is continued till this day. Thus, though the law disallowed the usage of prior sexual history, it came in through a back door.

So the question rises that even though there is a definite movement towards de-linking of a rape trial from the sexual history of the alleged victim, why is it still being used in the Courts.

Let us try and look at this issue from the standpoint of the two important stake holders, the bar and the bench.

Firstly, let us look at the issue from the perspective of a defense lawyer. The chief aim of a defense counsel is to use all possible legal arguments to save his client or at least ensure the minimum possible sentence. It is a known fact that the Indian society and therefore its judiciary tends to blame the victim in cases of rape or sexual assault. Thinking from the standpoint of a defense counsel, if proving that the alleged rape victim (especially if not married) is habituated to sexual activities leads to either acquittal or minimal sentence, it is his duty to prove the same. Some people might want to murder me at this point, and some would like to argue that this practice is unethical. For the first group I am not saying this is the best thing to do, but our Constitution itself provides that every person shall have a right to legal aid, and I guess a rape perpetrator is also protected under our Constitution. For the second group, yes I agree it is an unethical or rather an immoral thing to do. But, then it is also unethical for a lawyer to let his moral or ethical standards, affect the case of his client. So, for a defense counsel every rape case is a moral and ethical conundrum, and the only way out seems to be not accepting such cases. But, then what happens to the inherent right of a fair trial and legal aid that every citizen of India is entitled to. It can also be argued that, the lawyers should take a stand as a group and not use the sexual history of the victim as a defense tactic. This is even more problematic. It is so because arguing for the defendant is an art, and this art is in a lot of cases is dependent on using the flaws in the system. So, if such a limitation is applied, it would be akin to a handicapped match, and it somehow doesn't seem to be in congruence with our Constitutional scheme. The only place where in my understanding defense counsels should be reprimanded is if they are harassing the victim or are cooking up facts to support their claims. In such cases the strictest action should be taken against the erring lawyers. But, in other cases, its my humble opinion, that putting an artificial limitation on defense counsels, is not something that should be acceptable to either our constitutional scheme or the rule of law society that we claim to be.

I would like to highlight at this point that during the Jessica Lall murder trials, similar arguments about the moral standing of the victim were raised by Mr. Jethmalani. This was met by a wide spread societal disgust. In my humble opinion at the end of the day Mr. Jethmalani was just doing his job, and working a system, which is out there to be worked. So basically, why blame the player, when, the game itself is crooked.

Now moving on to the Bench and its standpoint on this issue. The Bench is not separate from the society it sits in judgment upon. The Bench is made up of people from the same society. This means that judges are also privy to the same faults as the rest of the society. This I think explains why even after the 2003 amendment, the Courts accepted the sexual history argument from the backdoor. This was so because in the eyes of our society and therefore its judges, the credibility of a sexually active women is doubtful in rape trials. This axiom seems to be dependent on a false understanding of the term consent in case of rape or sexual assault. This though an interesting area of discussion is outside the scope of this present piece, and will be dealt later. Thus, the Bench, will always be privy to giving acquittals or lighter sentences on the basis of prior sexual history of the victim. There are notable exceptions in the bench, but by and large especially in the lower judiciary this seems to be the trend.

So, by now I am sure you must be asking yourself, where am I leading you with this piece. I am basically arguing that the Bar can't be held responsible for either the state of things nor as a failing agent of change, and that the Bench is an extension of the society, so unless the societal perception of rape, consent, and associated concepts change, the Bench will continue to give credence to past sexual history. Well true, but there is a third stake holder the law maker, who can be seen as the game changer.          

Herein are a few suggestions as to how the law can be changed, for eradicating this menace, once and for all.
- Firstly, the law should disallow any medical tests or statements in the medical report, which can be used to verify the sexual history of the victim. To ensure the the efficiency of this, the medical fraternity should be made responsible if any such statement is found in the reports, or any such test is performed.
- Secondly, there should be a penal prohibition on questions being raised during the cross - examination, about any prior sexual activity, except, the alleged act of rape.
- Thirdly, it should be made mandatory on the judiciary to provide properly reasoned orders, for sentencing and/or acquittals in rape cases.
- Lastly, an accreditation process should be instituted for rape trials, which would measure the performance of various judges on a set of parameters towards ensuring fair rape trials. This process should be given weightage in promotions of judges, to make it more potent.

Though, some of these measures, might seem to be giving impractical, but looking at the increasing menace of rape in our society, it seems relevant and important, to give it our all in fighting this menace.

Thus, we have looked at the issue of linking of prior sexual history of the victim to rape trials. To conclude, I would like to state that, instead of waiting for a bottom's up approach towards reform from the Bar, we should focus on a top down approach, of reforming the judiciary, and making it nonviable and inefficient for counsels to use such arguments  in rape trials.

Thursday, April 18, 2013

Narendra Modi for PM: A blessing or a blunder.

Mr. Narendra Modi (hereinafter NM) seems to be the front - runner for the Prime Minister's post for the BJP. This post is about whether NM is suitable for becoming the Prime Minister of India. 

NM is a leader of the right-wing Bharatiya Janata Party in India. He has been the Chief Minister of the state of Gujarat since 2001. It was under his Chief Ministership, that the 2002 anti-Muslim Pogroms happened in Gujarat. It is widely believed that there was complicity from the highest levels of the state government, during the anti-Muslim riots. Mr. NM has been widely attributed to the statement, "every action has an equal and opposite reaction", to justify the riots. 

NM since then has inculcated ambitions to lead the country as its Prime Minister. This ambition required a 'secularisation' of brand Modi. This has been undertaken with great care, by various rallies, state grants and other minority appeasement policies. In a nutshell, NM from being projected as a hard-line Hindutva guy, has now become the epitome of a secular leader, who harps on economic development for garnering votes. 

I would like to clarify that NM has never been held responsible by the judiciary for the riots. Let us here after proceed with the assumption, that he has been falsely framed for the 2002 riots. But, it is still a firm belief among large sections of our Muslim brethren that, NM was the chief architect of the post-Godhra riots. Even though NM is now being touted as the secular leader who ushers in economic development, this belief of the minority community still stands strong. 

This is problematic because no matter how strong NM's secular credentials are/might be, the majority of our Muslim populace will be uncomfortable with someone like him as the leader of our country. This situation is somewhat similar to the position of the Indian National Congress(INC) in the late 1930's till the mid 40's. The INC was seen to command allegiance of the majority Hindu population of the erstwhile British India. It was seen as the protector of the rights and aspirations of the Hindu majority. The INC took a very technical stand on the issue of setting up of a secular and democratic nation. This technical stand has been viewed as a plan of the INC to garner power at the Union level, and then look for a solution to the the Hindu-Muslim problem from a position of power, and in a manner detrimental to the minority groups. This image of the INC (whether true or not) along with its insistence on technicalities in face of huge humanitarian costs led to the partition of India. This is a view that is accepted by both the then administrators of British India as well as historians post-independence. 

In my humble opinion, the election of NM as the Prime Minister of this country, might result in the rise of similar sentiments of insecurity among the Muslim populace of India. We dont know whether the INC was right in acting the way they acted, but all of us know that the insecurities that arose from those actions led to one of the biggest human tragedies the world has seen in the last century. I am not sure whether we should make the mistake of trying our luck again.

I would also like to question his claim of being one of the biggest champions of development. I agree that Gujarat today is one of the fastest growing and more developed states of India. But, there are two aspects which need to be underlined as regards that statement. First, what is the direct contribution of NM into the economic development of Gujarat. Secondly, what is the nature of this development. As regards the first aspect, Gujarat has always been a development oriented state, so the claim that he is the champion of development in Gujarat seems shaky. At best he can be credited with providing favorable conditions to further the success story of Gujarat. In my humble opinion, this can not and should not be used to judge his claim of being the champion of development, suitable for leadership of India. We should remember that India is still largely made up of parts which are under-developed, and the NM model of development might not be suited for pan-Indian application. It should also be noted that Gujarat for all its bluster, is not the fastest growing state in India, and there are various economic factors like FDI, net saving rate, etcetera, where Gujarat is behind a lot of under-developed states. Thus, one feels the need for critical scrutiny of these developmental claims at the national level.

The second issue in regards his developmental claims is the pathetic performance of Gujarat on social parameters of development. Gujarat has repeatedly been reprimanded for its bad Human Development Index. It is well known that the Gujarati society has become increasingly polarized during his tenure as the Chief Minister. The NM model of development is largely seen as a pro-industrialist model, and is not an inclusive model of growth. My respectful submission is that though such a model might be suitable for the development of a state, but it is not suitable for India, which is constitutionally mandated to be a welfare state.         

Thus, from the above discussion it seems that if NM was to be appointed as the leader of this country, it will alienate a large section of our minority and economically disadvantaged populace. There is a possibility that I might be wrong in my predictions, but all that I am asking is can India as a nation afford to take that risk.    

Tuesday, March 19, 2013

A hanging, A nation and its 'people'.

So, Mohd. Afzal Guru was hanged. The nation rejoiced, and our brethren from Kashmir felt even more alienated. The only question I am trying to address in this issue is whether hanging was the only option left with the government.

First, let us begin with understanding how the criminal justice system views punishment. The main theories of punishment are as follows, retribution, deterrence, rehabilitation and incapacitation. Severe punishments like the death penalty or life imprisonment can be justified under either of the retributive, deterrent and incapacitative theories. In cases relating to terrorist or extremist movements the only rational classification can be under the theory of incapacitation. This is because of the following reasons, firstly, as would be obvious from a bare reading of the Indian Penal Code, India doesn't believe in a retributive system. Secondly, as regards deterrence, it is an inadequate theory for cases relating to extremist and terrorist movements. Thus, to ensure that terror activities are not repeated the state endeavors to incapacitate as many terror figures as possible. This I humbly submit is the right approach to take, as survival of the state is of utmost importance to any nation. 

Any extremist movement is against the political set-up of the state. Whether justly or unjustly, these groups portray the state as an oppressor so as to garner sympathy from the local population. In such a scenario, I think it is important for a state to maintain its credibility in the eyes of its people. It is an age old saying under common law that, "justice should not only be done, but should manifestly and undoubtedly be seen to be done". This becomes even more important in areas, where the state is seen as an oppressor.

In the present case Afzal Guru was tried and sentenced to death for the attack on the Indian parliament. He took all the regular routes of appeal, and at all stages his death sentence was affirmed. He then applied for clemency to His Highness the President of India. somewhere around October, 2006. His mercy petition was finally rejected on 3rd February, 2013, after a gap of nearly 6 years. The government carried out the death sentence on 9th of February  2013. 

The actions of the state seem to be completely faultless in the above scenario. But, we should also note these further facts about this case, firstly, there was no intimation to the family about the impending death of Afzal. The letter sent by the jail authorities only reached the family two days after the hanging. This seems to me as a denial of a basic right which all prisoners are afforded, the chance to meet their dear ones. The state defends its actions by stating that they had posted the letter, but in this day of instant communication, are we being made to believe that it was just bad luck that the letter never reached its destination on time. I tend to disagree. These decisions were taken at the highest levels of the Home Ministry. And if the state had so desired, a timely intimation could have been issued to the affected family.

Secondly, the Apex Court in various cases has discussed the need for expedient decisions on clemency petitions. It has also been held that if a clemency application is on hold for a long time, the Court can convert the death sentence to one of life imprisonment. This is an important recognition of the rights of a prisoner. A person on a death row can't be made to die a 1000 deaths, before his actual death, and hence the need for expediency in carrying out a death sentence.  The state in its hurry to carry out the death sentence, prevented the accused from approaching the Apex Court for commutation of his sentence on grounds of delay. The importance of this last legal remedy, is evident from the fact, that the Supreme Court has in the immediate past, stayed the hangings of some key Veerappan aides on similar grounds. 

These discrepancies don't make illegal the actions of the state. But, they do cast a shadow on the credibility of the state. They also hint at the possibility that these actions were nothing, but political opportunism. 

The decisions of the Apex Court are part of the law our land. Then what was the necessity facing the government, that it had to carry out the death sentence in such a hurry, without letting the accused exercise his final legal remedy. If it is agreed that incapacitation is the goal for punishment under terror cases, then what difference would it have made, if the accused was incarcerated for life. 

I have read about a lot of justifications for the actions of the state. Most of them being on the grounds of national security. My question is, whatever be the justifications , are those enough to pay for the costs of alienation of an entire chunk of our citizenry? National security is of paramount importance. But, can the same issue of national security be used to damage irreparably the threads of this nation. Can policies aimed at our survival as a nation, in actuality lead to our ultimate decline. These are questions with no easy answers. 

I don't know whether the actions of state were mere bad policies, or whether it was done to garner maximum political mileage. But, either ways its high time, we as a nation, sought a review of these policies. Terrorism is not just a security issue, it is also a social issue, and we cannot continue with policies which result in alienation of our fellow citizens. A nation is made up of its citizens, and if we were to lose our fellow citizens, it won't be long before we loose our country as well. 

God Bless India. 
     

Monday, January 14, 2013

India - The Problems of a 'not-so-failed' State.

This is in response to a article in the Hindu which discusses the failure of the 'great'? Indian democracy. The article can be accessed here.

The basic argument of the above article, is that democracy is on the verge of failing in India, and that it is a part of the problem and hence cant be the solution, and so either our leaders should take this initiative to change this crumbling system, or we shall see the disintegration of India.

At the very outset I would like to state that I agree with the fact that there are huge problems facing this country, and there is a need to change, but I disagree with people who put the onus of change on the system, and this post is to explain my disagreement and show possibly the better way forward.

The Preamble of our Constitution, starts with the terms 'We, the people of India', and its we the citizenry who resolve to do a host of things, which incude securing all its citizens, justice, liberty, equality and fraternity. The thing to be noted here is its the citizens of the state making the resolve and not the State.

Yes our system is corrupt and we need to change it and everyone seems to agree with it. But, why is it that when its our personal interest which is at stake, then paying that bribe or making that call is ok. I have heard the argument before, if we dont pay our work will not get done, but what if no one pays? Which state functionary has the will or the power for that matter, to stop the advancement of our country? What we need to understand is, that a system is as corrupt as the citizens constituting it, so lets become honest at the individual level, before we root for a change in the system.

On the recent issue of rights to women, yes the crime was barbaric beyond words, and yes I am proud of a civil society which came up the way it did, in protest. But my problem lies elsewhere. Rape is an extreme manifestation of our patriarchal ethos and the culture of violence against women it perpetrates. So why is it that our society needs an extreme manifestation of it, to come out in support of our women. Why dont we as a civil society abhor the parctice of drunk husbands beating their wives and daughters, of female infanticide, why cant we as a civil society give the same sexual and relationship licenses to our womenfolk that we give to our men, why is it that taking and giving of dowry is acceptable even amongst the 'liberal' middle class. Let us change our patriarchal values, let us give real equality to women, an equality where except for biological differences, there is no other difference between a man and a woman, let us strive for such a society, before we blame the system. The rapists should be hanged, but please let us not be hypocritical and protest against rape, and say 'chalta hai' for wife beatings.

On the issue of democracy itself. Why is it that getting into politics is a strict no for children coming from middle class backgrounds. Yes it might not get you the 'posh'? lifestyle of a good corporate job, but had that been the thought in the heads of our freedom fighters, we would still be chanting 'god, queen and country'. Let us send educated middle class children into politics, and this same system of democracy which seems to be failing right now, would be an envy of the world. And the reason why I am referring to the middle class is that they have the most at stake with the success of this system in the long run, and its this class which has become highly vocal in protests in the last few years. Again, let us not be hypocritical, but lets change our attitudes and that will change the system.


I can go on and on with examples, but I think I have made my point by now. As is aptly stated in the Sermon on the Mount,

"And why beholdest thou the mote that is in thy brother’s eye, but
considerest not the beam that is in thine own eye ?
Or how wilt thou say to thy brother, Let me pull out the mote out
of thine eye ; and, behold, a beam is in thine own eye ?
Thou hypocrite, first cast out the beam out of thine own eye ; and
then shalt thou see clearly to cast out the mote out of thy brother’s
eye."

Let us change ourselves first, and the system which is constituted by us will change.  



Tuesday, September 21, 2010

Ban on Movies and our Constitution.

I was quite disturbed after reading the news piece regarding the banning of the movie “Kites” in Karnataka. The reasoning given for this ban, as reported in a newspaper, was that there was some dispute between the distributors and the Karnataka Film Chambers of Commerce. The dispute was on the issue of the number of screens that the movie could be released across. This was because in Karnataka non-Kannada movies can only be released in a certain number of screens so that there are always screens reserved for Kannada movies, and the distributors flouted this norm. The reasoning behind this division as reported by the newspaper was that it was done for protecting the interests of Kannada movies.
I would like to opine my dissent to this decision of KFCC. My dissent is on the ground that the basic aim behind the release of any movie by a distributor is to maximise his profits, and his profits are only maximised when the film is highly acclaimed by the populace. Now, if a distributor wants to release a certain movie in a large number of theatres, then it shows that in the prediction of the distributor, the movie will be widely accepted by the populace. The fact that needs to be taken into consideration here is that the distributors are the best predictors of the expected popularity of a movie as it is an integral part of their job and their lifeline depends on such predictions. Let us keep this conclusion in mind and then move to the next step. When a body like the KFCC restricts the rights of the distributor to release the movie in any number of screens as he deems fit, thereby reserving screens for certain movies, it is essentially limiting the options available to the audiences and additionally imposing a certain kind of cinema on them. This argument is based on the assumption that the distributors will only want to release a movie across a large number of screens if they think that there is a very high probability of that movie being widely acclaimed and as already argued they are in the best position to predict such a thing.
Thus there is no rationale in this decision of the KFCC, because its actions amount to forcing movies down the throat of the people, who necessarily would not savour such cinema. This is wrong on the following two counts-
Firstly, it does not make any economic sense because by this step you are reducing the profits of the film fraternity and hence the government loses on revenue as tax can only be calculated on the amount of income earned.
Secondly, this violates the fundamental rights of the distributor as defined in article 19(1)(g), of the Constitution of India. This article guarantees the right to practice any profession, or to carry on any occupation, trade or business. The only restriction that can be placed on this right is on the basis of public interest, this being stated in clause 6 of article 19. But, as already argued above, I do not see how this move can be considered to be in public interest. Therefore, I believe that this is a violation of our Constitution as well.
I would also like to state that the argument that this is necessary for the preservation of Kannada movies cannot be accepted because without any rational reason and under the guise of the conservation of a certain movie industry, the KFCC cannot take away the right of choice from the people. And in my humble opinion this action of the KFCC does indirectly take the right of choice from the people because the people should have a right to decide what
they want to see. And, if they do not like the decisions of the distributors regarding screening of movies, then there will be a consequent fall in the viewership and the distributors will be forced to give more importance to Kannada movies, but this decision should be left between the distributors and the populace, to be decided on the basis of the interplay of market forces.

Friday, November 13, 2009

Pain and Gain in Criminalisation

Criminalization is the process of defining an act to be a crime. An act becomes a crime when it causes harm to 'others' or the society or both, but all harm causing acts are not crime, only such acts which cause harm above a certain benchmark are crime. In this post, I will be analyzing the process of criminalization of an act, on the basis of Bentham's analysis based on the concept of pain and gain(basically another name for the cost-benefit analysis!!).

The process of criminalization takes place in two steps, both consisting of the pain-gain analysis. The first step is as follows, suppose an act A is under contention for being criminalized by the requisite authority. The authority should analyze whether the the pain caused by the act to the society or to the individual (against whom the act was done), as the case may be, is greater than the gain or the pleasure that the actor gets when he commits that act and only if the pain is greater than the gain, then such an act may be criminalized.

The second step is that, after the first step has shown that the act can be criminalized, then the authority should do an analysis of whether, the gain to the society from the criminalization of this act is greater than the pain from criminalizing this act, and only if it is proved to be so, then such an act may be criminalized.

The process of criminalization is followed, by the process of fixing the quantum of punishment for the crime. This again can be done by a pain-gain analysis. The basic funda here is, that the punishment should be such that the pain from the punishment should be greater than the gain for the actor from such an act, as only then will it have a detrimental effect on the crime scene, and as one of the aims of criminal law is reduction of crime in the society, such an analysis is necessary.