RTI: Why is Reserve Bank standing in the way of transparency?

On December 18 2019, the Supreme Court bench comprising Justices S Abdul Nazeer and Sanjiv Khanna, gave a very concise and brief order which reads as follows-

“Upon hearing the counsel the Court made the following order: Inspection Reports/Risk Assessment Reports/Annual Financial Inspection Reports of the banks including State Bank of India shall not be released by the Reserve Bank of India until further orders.”

In various Supreme Court judgments it has been mandated that all orders must give reasons. I have tried to understand the reason for constraining the citizen’s fundamental Right to Information in this order and have completely failed.

Corruption, Economy, Law, Opinion, RTI

By Shailesh Gandhi

December 15, 2019

President’s suggestion on Right to Mercy is unconstitutional

On December 6, 2019, the President of India, Ram Nath Kovind, while addressing the National Convention on Empowerment of Women for Social Transformation, stated that “Rape convicts under (the) POCSO Act (The Protection of Children from Sexual Offences Act, 2012) should not have the right to file (a) mercy petition”. In all probability, this statement came in the backdrop of the public outrage against the recent cases of rape and murder that have again shaken the collective conscience of the country and re-awakened the wound of the Delhi rape case. India witnessed two grave atrocities against women within a period of one week—the Hyderabad and the Unnao rape cases, where both brutalities ended with the victims being charred to death by the alleged culprits.

At a time when the whole nation is engrossed in deliberating a possible solution to such atrocities, the role of national leaders becomes very crucial: it is their duty to guide popular opinion in the right direction. Running high on emotions, the spirit of vengeance is likely to blindside the public of the possible consequences that would prevail if proper “due process of the law” is not followed to seek justice. Therefore, in such critical times, the President’s assertion that a plausible solution to this deep-rooted problem lies in deviating from the fundamental principles of criminal justice and depriving a category of culprits of their fundamental rights is quite simply regressive.

Along with other powers, Article 72 of the Indian Constitution allows the President, the power to grant pardon, reprieve etc. to any person convicted of any offence where the sentence is a sentence of the death penalty. It is an executive function where the President acts upon a mercy petition submitted by an accused or by anyone known to them. The President is required to act upon the advice of the Council of Ministers which is conveyed to the President through the Ministry of Home Affairs. There are no formal guidelines or grounds upon which the pardon is required to be granted, however, the philosophy underlying the power of pardon was well illustrated by the American Judge William Howard Taft in Ex Parte Grossman where he stated that “Executive clemency exists to afford relief under harshness and evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate the guilt”. Accordingly, the factors that are generally taken into consideration while deciding on a mercy petition are mental fitness, a long delay in investigation and trial, an inadvertent error by the court etc.

Law

By Varun Agarwal

December 11, 2019

Why the Transgender Persons Act goes against the Trans Community

We as a society do not know and neither are we eager to learn the nuances of sex, gender, or the experiences of those at the margins of these categories. The alarming thing is that this apathy is reflected in the language which our legislature speaks. Our state has, quite unsurprisingly, deemed it fit to not listen to the voices of the major stakeholders while introducing the Transgender Persons (Protection of Rights) Bill, 2019.

It is, in fact, a misnomer: the trans act is not in the best interest of trans people; it is against them. This is the most shameful irony of our times–the people most affected by a law are the last ones to be consulted before making major decisions on the rules to govern their bodies.

Our legislative and judiciary abound in biopolitics. The state implicitly recognises that the best way to be in control of a large population is to have power over their bodies. This is why custodial rape is so frequent in India. The state has codified and non-codified ways of asserting control over bodies of its citizens, especially those from historically oppressed groups. The trans act is a codified attempt–one to be enshrined in our rulebooks, to inflict the contempt of our ‘civil society’ on trans persons.

Gender, Law, Opinion, Politics, Society

By Meghna Roy

December 10, 2019

Why the Citizenship (Amendment) Bill is Unconstitutional

The Modi government cleared the Citizenship (Amendment) Bill, 2019 in a cabinet meeting on December 4, 2019 and it was passed yesterday (December 9), in the Lok Sabha. The Bill proposes to amend Section 2 (1) (b) of the Citizenship Act, 1955 by excluding “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”.

The Bill further proposes to amend clause (d) of the Third Schedule of the Citizenship Act, 1955 by reducing the period of residence in India, for those from the above-referred religious communities, for the acquisition of Indian citizenship through naturalization to six years from the earlier period of twelve years.

According to the Citizenship Act, 1955, illegal migrants cannot get citizenship of India. Under the Act, illegal migrants are those who have entered India without a valid passport or other prescribed travel documents or those who have come to India with a valid passport or other prescribed travel documents but have stayed here longer than the permitted period of time. These illegal migrants can either be kept in jail or sent back to their respective countries under the Foreigners Act, 1946 and the Passports (Entry into India) Act, 1920. The Bill seeks to ensure that people belonging to the above-referred six communities who are in India without valid travel documents can neither be imprisoned nor deported.

Law, National, Politics, Religion

By Atasi Ghosh

December 9, 2019

Criminal Justice System has failed the weak and the infirm

“At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom”. This sentence in the ‘tryst with destiny’ speech of Jawaharlal Nehru has inspired generations of Indians and will continue to do so. But there is something that will haunt all Indians for a long time to come: the agonising entreaty by the Unnao rape victim to save her life:

“I don’t want to die. I want to live to see them hanged,” she told her family. Unfortunately, the poor girl did not survive to see her wish realized.

Her case highlights the height of lawlessness in Yogi Adityanath’s expansive state of Uttar Pradesh, where Unnao has become a symbol of brutality against women. Unnao also marks a new low in our lack of concern as a society for the security of women. It is not about law, crime and punishment. We have failed as a society, nation and as a democracy.

Crime, Law, National, Opinion, Politics, Society

By K Raveendran

December 3, 2019

Answering a few questions post the Ayodhya Judgment

The Constitution Day was marked on 26 November celebrating 70 years of the adoption of the Indian Constitution. Putting an end to a dispute which is just as old, the Supreme Court pronounced its judgment in the Ayodhya case on 9 November. Back in 2010, while delivering his judgement, Justice S U Khan of the Allahabad High Court had observed that the entire country was waiting with “bated breath” for the verdict, and the mood was no different 9 years later.

Setting aside the High Court’s ‘trifurcation’ of the disputed property, the Supreme Court’s 1045-page judgment has prompted a few questions on why the Court held what it held. This piece is an attempt to answer those questions, purely from a legal point of view.

Why did the Supreme Court have to decide this dispute and why couldn’t the Government acquire the disputed property?

Law, National, Politics

By Aditi Dani and Ashwin Kumar D S

November 22, 2019

Sabarimala Review: Substitution of Constitutional Morality with Social Morality

The Supreme Court in the Sabarimala review case by a majority of 3:2 kept the review petitions pending along with several writ petitions on the same subject matter while referring the question of ‘judicial interference in essential religious practices’ to a larger judge bench. Justices Rohinton F Nariman and D Y Chandrachud, on the other hand, dissented upholding the 2018 Sabarimala verdict that allowed the entry of women of all age groups to Sabarimala temple.

The majority decision is hard to comprehend as the decision does not have a line of legal reasoning or thought. Supreme Court has been conferred with the review jurisdiction under Article 137 of the Constitution of India. However, the grounds for seeking a review of the judgment are restricted by Order XVIII of the Supreme Court Rules, 2013 read with Order XLVII Rule 1 of the Civil Procedure Code, 1908. A combined reading of the provisions would show only if new shreds of evidence are found which were either not found earlier or were unable to be produced, or on the existence of an error apparent on the face of the record, or for any other sufficient reason can a review be sought. The interpretation of the phrase ‘any other sufficient reason’ is restricted by the principle of egusdem generis–which means that the grounds will have to be analogous to the previous grounds.

A perusal of the decision, however, elucidates that the majority judgment has not examined the question of whether a review can be undertaken on any of the above three grounds. A subsidiary question that arises is whether the bench hearing a review petition has the power to refer a substantial question of law to another bench. At the root of the majority opinion was its decision to club the review petition under Art 137 with other ‘fresh writ petitions’ challenging the Court’s decision in Sabarimala case in 2018.

Law

By Nivedhitha K

November 19, 2019

Confusion Persists in Assam over NRC

For the much-harassed Hindus and Muslims in Assam suspected of being illegal Bangladeshi settlers, there is now a glimmer of hope: in recent days, authorities have released 20 people held in endless detention long after serving their 3 year sentences, from special camps in Goalpara and Tezpur.

Altogether 56 people are to be freed, out of 140 applicants. Most have been treated as prisoners for life, having served out their terms. There was no relief for the rest because their submissions were ‘not in order,’ according to local media reports. However, bowing to the twin pressures of international opinion and an increasingly hostile press, state officials have offered to help the barely literate poor prisoners unable to write out a legible prayer seeking their overdue release.

The sudden surge of official mercies comes in the wake of the recent death of two 60-plus men in jail. Both men suffered from acute mental and physical problems. Civil rights groups allege that even during their last hours they did not get much medical attention, whether in prison or when they were shifted to civil hospitals.

Law, Life, National, People, Politics, Religion, Society

By Ashis Biswas

November 17, 2019

Gogoi’s Retirement Verdict on Sabarimala

A famous—but not so famous—editor of Delhi was known to ring up his erstwhile colleagues (who were not as lucky as him to rise to the top position) every morning his editorial appeared on print. He would specifically ask them whether they had read the last sentence which he claimed was the most important part of the editorial. Because, according to him, he had written it in such a way that nobody would know what to make of it.

The Sabarimala review judgment by the bench headed by Chief Justice Ranjan Gogoi, who has just demitted office, belongs to a similar category. It is virtually a retirement judgment, which pleases possibly everyone and irks none. It leaves the scope for interested parties to interpret the decision whichever way they like, whether they support the entry of women of all ages to the famous hill shrine, or whether they believe that the entry of the women of reproductive age would cause discomfort to the celibate temple deity.

The verdict has expanded the scope of the issue raised in the clutch of review petitions challenging the 2018 September 4-1 majority verdict upholding the right of women of all ages to pray at Sabarimala to include almost everything that is related to religions and religious practices. Accordingly, the Sabarimala issue has been combined with entry of Muslim women in a Dargah/Mosque as well as the restriction on Parsi women married to a non-Parsi to visit the holy fire temple along with the practice of female genital mutilation in the Dawoodi Bohra community. There is nothing wrong with the approach, but it fails to appreciate the fact that the specific issue at Sabarimala is entirely of a different nature.

Law, Opinion, Politics, Religion

By K Raveendran

November 14, 2019

Ayodhya Verdict Legitimises the Act of Demolition

The Supreme Court verdict on the Ram Mandir-Babri Masjid dispute in Ayodhya has left many concerns and questions for the people of our country. First of all, as was appealed by almost every political party including BJP, this verdict by a five-judge bench of Supreme Court of India should not be taken as a victory for any group over another. This sounds good but the truth is entirely different. Many senior BJP leaders who are in government and also leaders of RSS-affiliated organisations have made statements which resonate like trumpet of victory. On the other hand, the people who are committed to secularism and justice have started expressing their agony and anxiety over the possible implications of this judgment. Renowned historians, academicians and judicial luminaries have commented openly and pointed out how the ‘faith’ has been kept over evidences and historical facts.

The apex court has agreed that placing of idols in the Masjid in 1949 and the demolition of the Babri Masjid in 1992 were violation of rule of law. The verdict could have addressed the gravity of the crime, that it was not merely demolishing one 450-year-old structure, rather it was an act of creating hatred among different communities of our country’s people. One could recall the profound words of K R Narayanan that demolition of Babri Masjid as the greatest tragedy India faced after the assassination of Mahatma Gandhi.

It is to be noted that the judgment failed to deliver justice in this matter. The judgment has left many lacunae of ethics, equality, justice and constitutionalism within its reasoning.

Law, National, Opinion, Politics, Religion, Society

By D Raja

November 13, 2019

Ranjan Gogoi is not retiring in glory

Chief Justice of India, Ranjan Gogoi, retires on November 17. Lawyers often joke that an incumbent Chief Justice of India always makes the last one look better, and nowhere has it been more true than the present one. In the run up to the retirement of Chief Justice Dipak Mishra in the last week of September 2018, there was much anticipation of the onset of ‘new era’ under the stewardship of the Chief Justice Ranjan Gogoi, who was believed to be upright and no nonsense person, and who participated in that landmark press conference by the four senior-most judges on January 12, 2018. Alas, the last one year has been such a shock to the ‘collective conscience’ of the lawyers, jurists, and common public that people are now talking fondly of Justice Dipak Mishra, and how he was not ‘so bad’. It’s like our current Prime Minister, Narendra Modi, making the Hindutva ideologue, L K Advani look better.

On a serious note, let us look at the legacy of the CJI Gogoi, and figure out how people would remember him, and his cases. Within days of assuming the office of CJI, Gogoi stopped the practice of ‘mentioning’ of cases by lawyers, unless it’s a matter of ‘life and death’. Anyone familiar with the Supreme Court would know the longstanding practice of lawyers always wanting to get their matters listed, usually urgent matters, by mentioning them before the CJI. Some hailed the move as an act by a ‘tough’ taskmaster wanting to bring order in an otherwise extremely chaotic legal system, while others thought it was a harsh move, and didn’t bode well for the institution.

However, it didn’t indicate the storm that was to engulf the whole judicial institution itself. In October 2018, the Government effectively sacked the then CBI Director, Alok Verma, by transferring him overnight, on the ostensible ground that CVC was conducting an enquiry against him, while the real reason seemed to be that Verma was investigating his deputy, Rakesh Asthana, against whom CBI had registered a FIR for the offence of bribery few days ago. Verma knocked the doors of the Supreme Court, and after much dilly-dallying, SC reinstated him as the CBI Director, only days before his tenure was to expire in January 2019, and that too being subject to the decision of the Committee set up by CVC to investigate the allegations against him.

Law, National, Opinion, Politics

By Amritananda Chakravorty

November 12, 2019

India Justice Report 2019: Uttar Pradesh worst in delivery of justice

Uttar Pradesh has fared the worst in delivering justice to its people followed by Bihar, Jharkhand and Uttarakhand, according to the Tata Trust’s India Justice Report 2019 which has examined the standards for delivering justice that were promised and provided by the states and union territories.

Maharashtra topped the list of the large states in delivering justice, followed by Kerala, Tamil Nadu, Punjab and Haryana. Among the small states, Goa topped the list followed by Sikkim and Himachal Pradesh. Arunachal Pradesh, Meghalaya and Mizoram ranked low among smaller states (where the population is less than one crore each).

The report–the first of its kind–has highlighted serious lacunae in India’s criminal justice system and ranked states and union territories based on their capacity to deliver justice across the four key pillars–police, prisons, judiciary and legal aid–after examining government data on budgets, infrastructure, human resources, workloads, diversity and five-year trends of police, prisons, judiciary and legal aid in each state.

Law, Life, National, People, Politics

By Nishant Sirohi