MTP law’s patriarchal bias

 On March 16, the Rajya Sabha passed the Medical Termination of Pregnancy (MTP) Amendment Bill 2020 despite much opposition and calls to send the Bill to a Select Committee. The Lok Sabha had passed the bill last year. Some relevant objections in the Upper House included the lack of consultation with stakeholders, raised by Amee Yajnik of the Congress, lack of inclusion of transgender people within the MTP framework, raised by Fauzia Khan of the Nationalist Congress Party, the lack of emphasis on centring women’s autonomy, raised by Binoy Viswam of the CPI. The fact that medical boards would constitute violations of privacy, and cause inordinate delays in abortion access due to lack of specialists, and lack of time limits for decision-making, ambiguous representation of women, and the extensive procedural hurdles, were raised by Yajnik, Khan, Priyanka Chaturvedi of the Shiv Sena and P Wilson of the DMK. Unfortunately, the government did not pay heed to these objections.

Union Minister of Health and Family Welfare Harsh Vardhan insisted that the government had “held extensive consultation process with experts representing a range of stakeholders from central ministries and departments, state governments, NGOs, academic institutions, professional bodies and associations like the Federation of Obstetric and Gynaecological Societies of India, that is, FOGSI, Indian Medical Association, Indian Nursing Council, and, of course, the legal professionals also.” He also said that the Bill was cleared by an Ethics Committee and a “Group of Ministers headed by Shri Nitin Gadkariji, and there were very senior ministers in this, including Smriti Iraniji and many other female ministers also”. We also had consultations with the Law and Justice Ministry, he said. The minister emphasised that there are several models of abortion regulation globally, one of which includes abortion on request. However, abortion under the MTP Amendment Bill will not be allowed at the request of a pregnant person, but is conditional on authorisation by the doctor. This goes against the Supreme Court’s jurisprudence on reproductive autonomy and bodily integrity. Further, the Bill will allow for abortions without any upper gestation limit only for foetuses with “abnormalities”, thereby fostering the ableist rationale of the State. The Bill is also overwhelmingly cis-heteronormative, with only cisgender women being contemplated in it, and not persons with other gender identities.

The Bill calls for the mandatory setting up of Medical Boards in every state and Union Territory which rely on inconsistent criteria for approval of abortions. This could cause severe delays in the abortion process; people living in rural areas in large parts of the country could find these Boards inaccessible. Over the last year, concerns have been voiced by the disability rights movement, health rights and feminist groups, and other civil society groups on the regressive and impractical provisions of the Bill. Failure to carry out substantive consultations with communities actually affected by the law gives a telling picture of how the Central government has been drafting and enacting laws that are harmful to the people they affect the most.

One example of this is the Indian Agriculture Acts of 2020 (Farm Bills), whose enactment sparked one of the largest protests in the country’s recent history. The government claimed that it consulted farmers before passing the Farm Bills, with Law Minister Ravi Shankar Prasad claiming that “extensive consultations, training and outreach programmes (were) conducted on the Agriculture Laws with stakeholders” and that 92.42 lakh farmers had participated in webinars conducted by them. However, all these interactions with farmers’ groups took place only after promulgation of the Ordinances in June 2020. This meant, first, that no pre-drafting consultations took place, and, second, that any suggestions which may have emerged during subsequent consultations were not incorporated into the Bills.

The process of drafting and enacting laws in a democracy must necessarily involve consultations and deliberations with representatives from civil society and grassroots organisations, all of whom have a stake in the implementation of such laws through their lived experiences. The equating of “stakeholders” with elite groups of healthcare professionals, bureaucrats and politicians – as mentioned by the health minister – and the exclusion of important civil society actors and marginalised groups whose lives are likely to be substantially affected by the law raises questions over the consultative process. Passing laws without a robust pre-legislative, consultative and deliberative process often leads to aspersions being cast on the legitimacy of these laws, rendering them increasingly subject to constitutional challenges and judicial interventions.

In passing the MTP Amendment Bill, the State continues to control women’s reproductive and sexual rights while wielding the argument of “progress”. The narrow understanding of women’s rights, which underpins the legislation, serves to explain much of the hetero-patriarchal regulatory orientation of the law. The co-option of “women’s rights” in the rhetoric to promote the Bill is ironic, as its provisions continue to criminalise abortion, and perpetuate harmful stereotypes and stigma around reproduction, sexuality and motherhood. The persistent notion that women are “natural” mothers, as reiterated in the Rajya Sabha debates, furthers the paternalistic idea that women need hand holding in making decisions related to their sexual and reproductive rights.

Written by Dipika Jain

This article first appeared in the print edition on April 1, 2021 under the title ‘Against her choice’. The writer is professor, Jindal Global Law School

Source: Indian Express, 1/04/21

How tech can transform law enforcement

 This will significantly increase the efficiency of our LEAs and, at the same time, drastically reduce the time taken to provide justice. It can be a win-win for all the key stakeholders.There is an urgent need for law enforcement agencies (LEAs) to adopt technology in their operations as it can act as a force multiplier. This is especially true in India where the police to population ratio is less than 150 per 100,000, whereas the United Nations recommends 222 police officials per 100,000 residents. But there are ways in which LEAs can use technology to increase their efficiency and effectiveness.

One, digitise citizen-facing services. Most citizens in India dread the idea of having to go to a police station. Technology can help make this interaction more pleasant. By providing digital access to the police, citizens can avail services from the comfort of their home. The Punjab Police has a citizen-facing portal, Saanjh, which provides online services for downloading first information reports and searching for stolen vehicles and lost mobiles, among other services. These digital portals also provide an easy and transparent mechanism to the citizens to register their complaints, provide feedback and track their complaint status. Technology can also be used to provide senior police officials dashboard views for their areas of jurisdiction, identify trends, patterns, outliers and take corrective action.

In addition to digital portals, social media can be used by LEAs to reach out directly to citizens — providing information on traffic jams, how to protect against cybercrime, dispelling rumours, countering fake news. The social media interaction can be both “push” — alerts are sent to citizens — or “pull” — citizens access the social media page/handle in order to get the desired information.

Two, use it for crime detection. Technology can effectively help get a digital footprint of the criminal. Mobile forensics can be used to retrieve critical information such as contacts, photos, SMS, video, email, web browsing history, location information and social networking messages. Call Detail Records (CDR) contain information about calls made and received, cell tower location, International Mobile Equipment Identity — a unique identifier for each mobile phone, and International Mobile Subscriber Identity — a unique identifier for each SIM. Due to the high usage of mobile phones, it is difficult to analyse these records manually. CDR analysis tools can be used to identify call patterns, most frequently called numbers, geo-location, and help in tracking missing persons, lost mobiles, movement, and establish relationships between criminal associates.

Artificial Intelligence (AI) can be used to match fingerprints, facial images, analyse CCTV footage and recognise vehicle number plates. In order to detect false number plates, AI can also be used to recognise the make and model of the car and match it with the vehicle registered with that number plate. Big Data can be used to integrate data from multiple sources such as social media tools, financial institutions, travel records, hotel stays, CDRs and criminal records. This can help create a 360-degree view of the criminal and draw linkages between criminal associates.

Smartphone apps linked to centralised databases can provide the investigating officer real-time access to information on missing vehicles, missing people, dead/unidentified bodies and criminal records, thereby significantly reducing the time taken to investigate a crime.

Three, use it in the realm of crime prevention. The holy grail for any LEA is to be able to prevent a crime before it takes place. Big Data can play a major role as it can be used to identify crime patterns and hot spots. AI can be used to draw correlations between the type of crime, time, location. Analysing crime patterns in Punjab showed that snatching incidents peaked around 8 pm in rural districts whereas the peak occurred around 10 pm for urban areas. Information of streets/roads where most of the snatchings occur can be studied by plotting the crime locations on maps. The findings can then be used to deploy beat constables more effectively thereby reducing/preventing crime. Given the high number of postings and transfers in the police, the MIS reports and dashboards can help the newly transferred officer to get up to speed quickly.

Sentiment analysis of social media chatter can be used to identify potential riots (including location and time) as well as track the source of rumours designed to create communal disharmony. Social media can also be used in a proactive manner to provide authentic information to the public and dispel false rumours/fake news.

Four, LEAs have often not fully appreciated the impact of technology for improving internal efficiency. While most police departments in India have an operational human resources management system in place, efforts need to be put in to mine the data more effectively. Analysis of educational qualifications, age, gender, religion, caste, training, posting, rank, and supervisor-to-employee ratio can be used to identify gaps in the organisation.

These gaps can be addressed via hiring, training, postings thereby ensuring a more “balanced” and effective organisation. Similarly, key performance indicators such as the time taken to file a charge-sheet, types of crimes solved, time taken to address complaints, citizen feedback scores can be used to determine an officer’s performance in a more objective manner.

Training-Open Source Learning Management Systems, low-cost bandwidth and a digitally aware workforce mean that it is now possible to provide online training in a cost-effective manner on an unprecedented scale. To increase reach and effectiveness, these courses need to be offered in vernacular languages, they can be quiz-based, and certificates and recognition given to officers who demonstrate the ability to leverage these learnings in their jobs.

And finally, real-time integration. The five pillars of the criminal justice system are police, courts, prosecution, jails and forensics. While efforts have been made to integrate data from these five pillars at the central level, a lot of work needs to be done to integrate these systems at the state level. Countless man-years are lost in taking physical files from one place to another. Real-time integration between the information technology systems of these pillars will help in reducing duplicate data entry and errors. This will significantly increase the efficiency of our LEAs and, at the same time, drastically reduce the time taken to provide justice. It can be a win-win for all the key stakeholders.

Dhruv Singhal is the chief technology officer of Punjab Police

Source: Hindustan Times, 12/02/21

A new vision for legal education in India

 

Legal education and law schools are the foundation whose quality, workmanship and solidity determine the beauty, longevity and functional utility of the superstructure of law. But, in India, only a few dynamic and outstanding law schools remain islands of excellence amid a sea of institutionalised mediocrity.

A lawyer is to be a harmoniser, a reconciler, a legal architect, indeed an inventor. The character of law schools determines the character of the Bar and Bench. We must focus on tying up the existing corpus of rich data on legal education into a national legal education plan. The democratisation of legal education is vital. We have to spread distributive equity over inclusive legal education. And the fact that no Indian law school — barring two — finds a place in the top 300 global law schools adds to the urgency of designing a road map to transform legal education.

First, our legal curricula must be made multidisciplinary, creative and flexible. We must integrate topics such as reforms in the justice delivery system, clinical legal education, practitioner’s workshops, legal writing and alternative dispute resolution into a national course module.

Second, there is the serious problem of law teachers, or the lack of them. Law teaching can attract young minds only by shortening the substantial financial gap between leaders of the Bar and teachers. Reciprocally, those under special remunerative schemes have to be bound by valid legal instruments to teach for a minimum duration. A pilot programme must create an alternative remuneration scheme with more public-private partnerships, greater autonomy and special financial terms.

Third, our law libraries are too few and poorly stocked. The latest technological tools of research must link each law school with the best sources of knowledge globally. A library cess levied only on senior advocates across the country must be operationalised for law libraries for maximum ground impact in rurban and rural India.

Fourth, internships and post-degree placements have to be sewn up into a national scheme — today placements are ad hoc with no institutionalised system of matching applicants and hosts. Some students, especially with contacts, have the luxury of plenty, while several of their more talented but less influential colleagues fall by the wayside.

Fifth, a national scheme must ensure that senior practitioners, with expertise in particular areas, compulsorily take a minimum number of classes in lesser-endowed law schools. The legal educational sector, the Bar, the Bench, the corporate legal sector and law firms continue to function in silos of isolated splendour when the need is for the exact opposite— close, continuous, coordinated alignment qua legal education.

Sixth, even experienced and established lawyers, judges and other law persons must submit to periodic and continuing legal education programmes. Judges and lawyers alike should be ready for such short, structured, continuing legal education capsules.

Seventh, our National Law Schools shone because of three important innovations; academic autonomy by making each a stand-alone university; entrance through a strictly merit-based admission system based on a written test; and an integrated, professional five-year law programme plus curricula innovation. Why we don’t have this, even partially, in other Indian law schools, remains a mystery.

Eighth, the 2009 Bar Council resolution that all law schools should establish a legal aid centre to provide inexpensive and efficient advice to needy sections of society has been observed mostly in the breach.

Ninth, the negative impact of stratification of colleges has to be remedied. Central Universities set up by Parliament have their law faculty as the university’s law school. State universities are mostly affiliating universities for private law colleges. There is an institutionalised mediocrity and dilution of academic standards in most of these affiliated colleges. Many do not have adequate and qualified faculty or law libraries with e-resources and no regular conduct of classes and examinations.

Tenth, phasing out of many existing colleges must be completed swiftly. The Madras High Court said in 2017 that 85% of law colleges must be closed, an irony since the number has jumped from 800 in 2000 to 1,500 in 2019. The closure of at least 500 mediocre profit shops would minimise the sale of fake law degrees.

Eleventh, our starry-eyed view of five-year courses must not be at the cost of strengthening the three-year programme which must be made more rigorous and full-time.

Twelfth, the unique aspect of legal education in the United States (US) with its engagement between law firms, corporations, non–governmental organisations, legal aid centres, think tanks, government agencies and intergovernmental organisations, must be replicated in India.

Last, the elephant in the room must be addressed. The Bar Council has too many functions — law reform, disciplining lawyers, setting standards — to do justice to a full-time job like legal education. Electoral politics compromises its independence. An empowered committee of academicians, chief justices and eminent lawyers should be set up or an independent, autonomous National Council for Legal Education and Research must be created to bring objectivity into the system.

Abhishek Singhvi is a third-term MP; jurist; former chairman, Parliamentary Standing Committee on Law & Justice; former Additional Solicitor General; and senior national spokesperson, Congress

By Abhishek Singhvi

This is based on a speech delivered at a global conference organised by Jindal Global Law School

Source: Hindustan Times, 10/01/21

Punitive responses to sexual violence need rethink, given perverse consequences

 

Tackling crimes against women and children requires broader social reforms, sustained governance efforts and strengthening investigative and reporting mechanisms, instead of merely enhancing punishment.

On Human Rights Day 2020, the Maharashtra cabinet approved the Shakti Bill, enlarging the scope of harsher and mandatory sentences — including the death penalty — for non-homicidal rape, to purportedly deter sexual offences. The Bill also introduces a problematic standard of consent and allows decision-makers to presume consent from the conduct and circumstances surrounding the incident. Harsher sentences have had perverse consequences on the already low rates of rape convictions. Besides, the new standard of consent poses the serious risk of reinforcing myths, including regressive notions about “ideal” rape victim.

The Shakti Bill comes amid the recent legislative trend to invoke the death penalty for sexual offences, beginning with the introduction of the death penalty for child rape in 2018. In 2020, the Andhra Pradesh government passed the Disha Bill, pending presidential assent, that provides the death penalty for the rape of adult women.

The death penalty is the last phase of a criminal trial while rape survivors face serious obstacles much earlier, especially at the time of registration of the complaint. The most severe gaps in the justice delivery system are related to reporting a police complaint. The focus of the criminal justice system, therefore, needs to shift from sentencing and punishment to the stages of reporting, investigation and victim-support mechanisms. The bill does not address these concerns.

Second, harsh penalties often have the consequence of reducing the rate of conviction for the offence. For instance, a study by one of us published in the Indian Law Review based on rape judgments in Delhi shows a lower rate of conviction after the removal of judicial discretion in 2013. Introducing harsher penalties does not remove systemic prejudices from the minds of judges and the police, who might refuse to register complaints, or acquit offenders in cases they do not consider as “serious” enough to warrant a mandatory minimum.

Third, studies on child sexual abuse have shown that in the few cases of convictions, the minimum sentence was the norm and the award of the maximum punishment was an exception. Moreover, crime data from the National Crime Records Bureau shows that in 93.6 per cent of these cases, the perpetrators were known to the victims. Introducing capital punishment would deter complainants from registering complaints. The Shakti Bill ignores crucial empirical evidence on these cases.

The other anti-women assertion in the bill is the move away from the standard of affirmative consent in cases involving adult victims and offenders. Significant advocacy from the women’s movement led to the introduction of an affirmative standard of consent, rooted in unequivocal voluntary agreement by women through words, gestures or any form of verbal or non-verbal communication. In a sharp departure, the bill stipulates that valid consent can be presumed from the “conduct of the parties” and the “circumstances surrounding it”. Rape trials continue to be guided by misogynistic notions, expecting survivors to necessarily resist the act, suffer injuries and appear visibly distressed. The vaguely worded explanation in the bill holds dangerous possibilities of expecting survivors to respond only in a certain manner, thus creating the stereotype of an “ideal” victim. It also overlooks the fact that perpetrators are known to the survivors in nearly 94 per cent of rapes, which often do not involve any brutal violence.

The Shakti Bill, while serving the populist agenda of making the public believe that the state is doing “something”, does not achieve more than that. Tackling crimes against women and children requires broader social reforms, sustained governance efforts and strengthening investigative and reporting mechanisms, instead of merely enhancing punishment. Punitive responses to sexual violence need serious rethinking, given the multitude of perverse consequences and their negligible role in addressing the actual needs of rape survivors.

Written by Neetika Vishwanath , Preeti Pratishruti Dash

Source: Indian Express, 7/01/21

What is Contempt of Court?

 

Contempt of court: What exactly amounts to it? What is the punishment if guilty? here is what the rule book says - Contempt of Courts Act, 1971.

Remarks, speeches, illustrations and social media comments made by individuals have on several occasions resulted in accusations of being in ‘contempt of court’. These, however, do not always hold and are dismissed by the Attorney General of India, whose prior consent is required for the Supreme Court to initiate criminal contempt action. So what really does the law say about contempt of court? When is one guilty of it?

What is contempt of court?

According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt. Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

A contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Source: Indian Express, 11/11/20

Legal language in India is filled with jargon

 

Legal language in India is sometimes beyond understanding, often boring. George Orwell may have the solution.

Subhash Vijayran (a lawyer) has recently filed a PIL in Supreme Court (Subhash Vijayran vs Union of India). He wants the legislature and executive to use plain English in drafting laws, the Bar Council to introduce plain English in law curricula and the Supreme Court to only allow concise and precise pleadings. He begins the synopsis to the writ petition in the following way. “The writing of most lawyers is: (1) wordy, (2) unclear, (3) pompous and (4) dull. We use eight words to say what can be said in two. We use arcane phrases to express commonplace ideas.” Reacting to the plea, the Supreme Court has asked the Ministry of Law and Justice and Bar Council to respond. Everyone will empathise with Vijayran. But he avoided mentioning the judiciary, though lawyers do turn judges sometimes.

A landlord was trying to evict a tenant. In this suit, in 2016, the Himachal Pradesh High Court ruled: “Even if assumingly no efficacious evidence nor any evidence of cogent worth may stand adduced qua the defendants raising any obstruction upon the suit land yet the decree of permanent prohibitory injunction dehors any obstructive act done by the defendants during the pendency of the suit before the learned trial Court or during the pendency of the appeal before the first appellate Court also dehors no scribed relief in consonance therewith standings prayed for by the plaintiffs would not estop this court to permit the executing court to carry the mandate of the conclusively recorded decree of permanent prohibitory injunction pronounced qua the plaintiffs, conspicuously when thereupon the mandate of the conclusively recorded decree pronounced qua the suit land would beget consummation besides would obviate its frustration.” Alternatively, “For facilitating its consummation, though the learned executing Court stood enjoined to pronounce an appropriate order, contrarily it by relegating the impact of the aforesaid germane factum probandum comprised in the enforceable executable conclusive decree, has inaptly dismissed the execution petition.” The entire judgment is like this and I can quote paragraph after paragraph on what is nothing but gibberish.

Such an offensive statement might expose me to Contempt of Courts Act of 1971, since anyone who “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court” is culpable. But I am protected because when the aggrieved landlord appealed before Supreme Court, two judges of the Supreme Court said, “It is not possible to comprehend the contents of the impugned order passed by the High Court.” The Himachal High Court judgment is not an outlier. Here is another judgment from the Supreme Court (Subramanian Swamy vs Union of India). “This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multi-layered, limitless, unbounded and unfettered spectrums, and the controls, restrictions and constrictions, under the assumed power of ‘reasonableness’ ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation.” I didn’t understand what this means. The next sentence, which I did understand, had only 227 words. I wonder what Lord Denning, or any copy editor, would have made of these.When asking the Ministry of Law and Justice and Bar Council to respond, the Chief Justice of India referred to Anthony Burgess’s book (1964) Language Made Plain. There are a host of books on plain English — Martin Cutts, Ernest Gowers, Fern Rook, Joseph Williams, Richard Wydick — apart from to-do kits. My favourite happens to be George Orwell’s 1946 essay, Politics and the English Language, which was primarily directed against the Soviet Union. “As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: Prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated hen-house… A mass of Latin words falls upon the facts like soft snow, blurring the outlines and covering up all the details.” Prima facie, inter alia, ipso facto, ab initio and ad hoc, it seems to me that court judgments also display actus reus and mens rea. Much before Plain English books, George Orwell set out six principles. “(i) Never use a metaphor, simile or other figure of speech which you are used to seeing in print. (ii) Never use a long word where a short one will do. (iii) If it is possible to cut a word out, always cut it out. (iv) Never use the passive where you can use the active. (v) Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent. (vi) Break any of these rules sooner than say anything barbarous.” Copy editors routinely use these principles, but not the judiciary.

If you like an indigenous template, the Vidhi Centre for Legal Policy produced a manual on plain language drafting in 2017. Why are judgments so verbose? George Orwell was perceptive. “When you are composing in a hurry — when you are dictating to a stenographer, for instance, or making a public speech it is natural to fall into a pretentious, Latinised style.” Typically, judges don’t write judgments. They dictate them. No one writes like that, even with a keyboard. This is Isaac Pitman’s legacy. I mean legatum.

Bibek Debroy

This article first appeared in the print edition on November 12, 2020 under the title ‘The plain truth’. The writer is chairman, Economic Advisory Council to the Prime Minister. Views are personal

Source: Indian Express, 12/11/20

Virtual courts cannot fully replace a process that demands direct human interaction

 

The dispensation of justice is a human endeavour made up of laws, ethics, morality, wisdom and compassion. The absence of any one of these five ingredients, short-changed by restrictive virtual situations, would render the exercise of justice only partially satisfactory or even downright unjust.

The Parliamentary Standing Committee on personnel, public grievances, law and justice, in its recent report, recommended holding virtual courts even after the pandemic ends. The chair said, “the parliamentary panel strongly pitched for virtual courts… digital justice is cheaper and faster besides addressing locational and economic handicaps; ensures safety of vulnerable witnesses providing testimony, expedites processes and procedures and are an improvement over traditional courts as they are most affordable, citizen-friendly and offer greater access to justice”. Meanwhile, there is a large group of lawyers of the Delhi High Court clamouring for more physical hearings and a smaller group of them objecting, citing health concerns.

While the government popularly believes digitisation is the answer to all the problems of governance, and these are often excitedly referred to as “game changers”, issues related to digital technology solutions need careful analysis and an overhauling of both laws and existing systems before they are introduced. While I am neither a lawyer nor a digital expert, I have attended court hearings more than 180 times since the 1980s on cases related to trespass, defamation, right to livelihoods of artisans and against administrative injustices. Over almost two decades, 150 of these were related to a CBI case emerging out of the Tehelka.com allegations. Of these, the last 12 were video hearings on final arguments, verdict, sentencing and appeal, which took place during this pandemic. One personally experienced the benefits and flaws of the virtual system.

“Justice delayed is justice denied” is a notoriously abused maxim in our court system considering there are 3.1 crore cases pending in the lower courts (83 lakh pending for over 10 years), 44 lakh in the high courts (32 lakh pending for over 10 years), and 60,000 cases pending in the Supreme Court (the figures are as of 2019). Prisons are over capacity by 114 per cent, of which two-thirds are undertrials, who have had no justice at all. The massive injustice already done to them is unforgivable.

It is hoped that virtual courts will reduce the pendency of cases by reducing the time taken on small financial issues like insurance, traffic claims and challans that clog the system. But major policy changes always have unintended consequences, so careful thought is required on what types of cases and what parts of the judicial process are amenable to going online. It should also be a matter of choice if participants on either side want to use the virtual route. Certain cases of tax, insurance and some corporate matters could move to the online dispute resolution processes through negotiation, arbitration and conciliation. Reducing pendency through virtual courts will reduce travel costs, although lawyers are unlikely to reduce their fees. When government agencies file cases or appeals, they ignore these costs as they come out of the public exchequer. Very often, the police and other criminal investigative agencies take years to produce witnesses. Judges hesitate to compel them. Repeated adjournments are sought, not just by the accused, but by prosecuting agencies who are nonchalant. Examination of the causes of pendency should, therefore, extend far wider afield.

Essentially, technologies alone do not improve the system, people do. Adoption of new and evolving technologies requires careful preparation to ensure that “justice delivery services” created by software engineers is matched by local court systems and the level of training given to those who handle them in India’s courts. Currently, judges have had to speak from landline phones or without video, and lawyers have been compelled to argue cases from inside their cars if the network in their homes is faulty. There are audio failures, and lack of connectivity in rural areas. Unless connectivity is established, it cannot be presumed and compelled. Rushing into new protocols without understanding uses and applications will disempower the poor even further, especially undertrials who cannot afford lawyers.

In India, we are already applying digital services to industry, businesses, agriculture, defence, governance, education and health. Today, court rulings have been applied not only to human beings but to animals, rivers and even gods. Therefore, any case involving decisions affecting the life and liberty of persons must remain in the realm of physical courtrooms. Forceful interventions, and often repeated stressing of a point is required in a courtroom. Lawyers need to interrupt when they feel the arguments of their counterparts are factually inaccurate — we are, after all, according to Amartya Sen, “argumentative Indians” — but this cannot happen unless the “host” of the video court hearing unmutes you. Facial expressions such as fear, guilt, regret, sadness, anger, which can affect a case, are constricted and almost frozen into a small space. Faces are often out of proportion and distorted. Nuanced arguments that are most important in law sometimes need perseverance to get across, as is the ability to display evidence creatively (recall OJ Simpson’s famous glove), or the room for presenting many crucial options to create reasonable doubt. Appealing for compassion for the elderly and the disabled, and pleas for leniency of punishment for senior citizens with co-morbidities in COVID-19 times are easily ignored by judges, when the accused is only a small square on a screen and not a frail human being standing before them in flesh and blood.

Seminal and crucial matters that need direct human interaction should never be replaced by virtual courts. The dispensation of justice is a human endeavour made up of laws, ethics, morality, wisdom and compassion. The absence of any one of these five ingredients, short-changed by restrictive virtual situations, would render the exercise of justice only partially satisfactory or even downright unjust.

 Jaya Jaitly

This article first appeared in the print edition on October 22, 2020 under the title “No software for justice”. The writer is former president, Samata Party

End gender-based discrimination in the Hindu Succession Act

 

The assumptions in HSA that govern the devolution of women’s property are no longer valid

On August 11, the Supreme Court (SC) of India ruled that a daughter has the same rights as a son in an ancestral property under the Hindu Succession (Amendment) Act, 2005, regardless of when the father may have died, which the principle law – the Hindu Succession Act, 1956 (HSA) – originally did not grant. The 2005 amendment and the subsequent SC ruling are significant steps towards removing gender-based discrimination in HSA. However, the provisions of HSA which govern the devolution of property of a deceased woman are still firmly rooted in outdated assumptions.

These provisions treat the Hindu joint family, traditionally led by a patriarch and lineage traced through exclusive male relations, as central to all matters of inheritance. Therefore, HSA tries to retain property within the husband’s family as far as possible when a woman dies childless. This results in unfair discrimination against the woman’s natal family. Even when the woman has acquired the property through her skills and efforts, the husband’s natal family has a stronger claim over it than her parents. However, there is no reciprocal provision for the property belonging to the husband.

The notion that the law should preserve property in a Hindu joint family is based on two outdated assumptions. First, that the joint family is the most relevant and important unit of societal organisation among Hindus. Second, that women do not have the wherewithal to acquire and manage their property. Both these assumptions are out of touch with today’s reality.

The joint family is becoming increasingly irrelevant as an institution. According to the Census, the average family size of Hindu households reduced from 5.16 persons per household in 2001 to 4.9 persons per household in 2011. According to the Census, the median family size in urban areas has dropped below four. This is part of a larger trend of reduction in family size over the years and shows just how irrelevant joint families have become. Even the Hindu Code Bills committee expressed the same opinion in its 1944 report. BN Rau, the chair of the committee (and who would later play a pivotal role in drafting the Constitution of India), noted that the institution of a Hindu joint family is outdated and should be abolished.

The assumption that women do not have the capacity to acquire, hold, and manage their property is refuted by examining the socio-economic status of women today. The Hindu Code Bills committee, however, called this argument specious in its report. Proponents of this argument pointed to the low literacy rate among women as a justification. But the Committee refuted it by pointing out that the literacy rates among men were not significantly higher either. Regardless, HSA, as passed by the Parliament, included the problematic provision.

Today, far more women are employed than they were at the time when HSA was enacted. The workforce participation rates for women have increased from 12% in 1971 to 25% in 2011, according to Census figures. The National Family Health Survey (NFHS) 2015-16 reports that 28% of women (between the age of 15-49) own land – either jointly or by themselves – and 37% own a house (jointly or by themselves), 53% of women have savings accounts in banks. They own 21.5% of all proprietary establishments in the country, according to the Union ministry of statistics and programme implementation. Their literacy rate has increased from 9% in 1951 to 65% in 2011. They now represent 46% of the total annual enrolments in higher education, and are 53% of the total post-graduate degrees awarded every year.

This change in the status of women demands a fundamental change in the treatment of their property under the law. While some would argue that this provision only kicks in after their death, the lack of ability to provide for their natal family even after their death vis-a-vis a man’s ability to do the same impacts how women’s overall role is perceived in society.

Further, there are three demographic trends that add to the urgency of this reform. First, according to the Census 2011, there were 49.5 million women in India who were or had been married, and had no surviving children, up from 24 million in 1981. Second, India’s total fertility rate declined from 5.91 in 1960 to 2.51 in 2017, which means that women have fewer children today than they used to in the past. Third, the number of widowed women in India increased from 24 million in 1961 to 43 million in 2011. The increase in the number of widowed women far outstrips the increase in the number of widowed men. This is likely in part because the average life expectancy for women is higher compared to men, and the rates of remarriage for women are far lower. Put together, this means that the pool of women who are widowed and do not have children will likely be higher in the future than it is today. It is this growing pool of women who are, and will continue to be, affected by HSA’s discriminatory provisions.

The assumptions in HSA that govern the devolution of women’s property are no longer valid. We must acknowledge the reality of society and treat women on par with men in all spheres of life, including in matters of property devolution.

Devendra Damle is a researcher with NIPFP

Source: Hindustan Times, 10/09/20

What delays delivery of justice in lower courts? IIM study finds out

‘Over 60% Of Time Spent On Reasons Other Than Court Functioning’

 A recent study has found that along with long pendency of cases, issues such as judges’ absence, repeated adjournments and courts refusing to simplify processes add to judicial delay. More than 60% of court time is spent on reasons other than court functioning. A study by Indian Institute of Management, Calcutta, found that on an average, it took over 122 weeks, or around two-and-a-half years, for a litigant to get a judgment. Only 41% of this time, or 36 weeks, was spent in court functioning, the remaining period was spent in awaiting orders/instructions from the high court (22 weeks) and adjournments for absence of judges because the presiding officer was either busy or on leave or on transfer order (17 weeks). “There is a huge delay due to the processes of court functioning during the trial stage for reasons namely non-attendance of witnesses, non-appearance of lawyers, lengthy oral arguments, arbitrary adjournments and delayed judgments,” the study said. Adjournment for even passing judgment took an average nine weeks, while court holidays and strikes consumed about five weeks. Then there were other causes of delay such as the absence of lawyers of both plaintiff and the defendant and quite often, court entertaining requests for postponement due to delay in producing required information. To understand court processes and re-engineering opportunities to improve court efficiency for justice delivery, the law ministry had last year assigned the study to IIMCalcutta. Three professors of the institute — R Rajesh Babu, Sumanta Basu and Indranil Bose — analysed 40 randomly picked civil cases of different types from jurisdiction of 24 South Parganas district court to understand the reasons for delays. On repeated adjournments, the study found that absence of lawyers was often a common factor. “Since advocates have to deal with multiple cases at the same time, they can’t be present everywhere, hence some cases have to be delayed so that pertinent ones can be attended to. Lawyers also continue to take long dates so as to cover the tenure of the current judge (the tenure of a judge is for a period of 2-3 years) and present the case afresh to the new judge,” it said. To understand the sources of these delays, the study interviewed litigants and lawyers and found that a case usually got 5-6 dates in a year.

Source: Times of India, 21/10/2019

Is it time to abolish the death penalty?

The death penalty is error-ridden, arbitrarily imposed and unfairly targets the poor

As a punishment, the death penalty makes no sense: how does killing a person who has killed a person show that killing is wrong? Most of the civilised world has abolished it. India certainly does not need it as it serves no purpose. No study has shown that the death penalty deters murder more than life imprisonment. The evidence is all to the contrary. For deterrence to work, the severity of the punishment has to coexist with the certainty and swiftness of the punishment. The death penalty has not deterred terrorism, murder or even theft. For over a century, stealing attracted the death penalty in England, where spectators at public hangings often had their pockets picked!

Problems with death penalty

The death penalty is error-ridden. Between January 1, 2000 and June 31, 2015, the Supreme Court imposed 60 death sentences. It subsequently admitted that it had erred in 15 of them (25%). Can this system be trusted to take a life? And that too based on evidence collected, or fabricated, by a police force not known for its probity or efficiency?

The death penalty unfairly targets the poor and marginalised. Those without capital get the punishment. Penurious prisoners on legal aid get it the most, while others with private lawyers remain untouched.

The death penalty is impossible to administer fairly or rationally. The Supreme Court has repeatedly admitted that it has arbitrarily imposed this most extreme punishment. Executions occurred in 5.2 cases for every 1 lakh murders. Such a selection cannot but be freakish. It depends overwhelmingly on the adjudicator’s personal beliefs. Judges opposed to it never gave a death sentence; those in favour doled it out. Abolitionist Presidents (S. Radhakrishnan and A.P. J. Abdul Kalam) refused to reject mercy petitions, while others, differently inclined, readily denied clemency. Should the killing of a human being depend on the philosophy of a particular individual?

Abolishing the death penalty will ease, not enhance, the tax-payer’s burden. The annual cost of maintaining a prisoner is about Rs. 30,000. The hangman is paid more, and we also save on the protracted litigation that death cases involve.

Constitutional, legal and policy issues cannot be determined by the victim’s understandable hunger for revenge without leading to a frenzy where the death penalty is demanded, as it often is, for wholly inappropriate cases (accidental deaths, cheating, etc.). If life imprisonment sufficed for the 99.99% of victims’ families, why not for the minuscule fraction in whose name the death penalty is demanded?

Punish, yes, but why in the same cold-blooded, premeditated and brutal manner as the prisoner killed his or her victim? Punishment should not imitate crime. We do not rape rapists, or maim and disfigure those who have done this to others. Why do we have to kill killers?

A safer country

India’s murder rate has declined continuously since 1991 and is at present the lowest in our recorded history except for 1963. Fearmongering aside, we are safer today than our parents or grandparents ever were. And this is not thanks to the death penalty whose infrequent and arbitrary implementation has made no real difference. It may as well have not been there. Studies show that a more equal sex ratio has more to do with declining murder rates than killing murderers.

Nobody wants to undergo the trauma of administering the death penalty — not the higher courts and not the hapless prison staff who have to see a human being die gasping at the end of a rope. Governments kill prisoners to show that they are tough on crime. There is nothing muscular or tough about killing a man who is at your mercy.

Source: The Hindu, 14.12.2018

India needs more good Samaritans

Unfortunately for victims of road accidents, crowds are just observers, and often hesitate to help, and with good reason. With accidents come the police, and with the police come investigations. Assistance is therefore, not always easy or instinctive. This is primarily because people are unaware of Section 134A of the Motor Vehicles Act – the Good Samaritan Law.

According to the World Health Organisation, 2015 saw over a million people across the globe losing their lives in road-related accidents, and in a call to action, stated that road accidents are a “massive and largely preventable economic toll”. Many developed countries in the west now consider this a top priority. Their action plans include immediate medical care through bystander intervention. Bystanders, who witness these accidents, are not just expected to help, but in some countries are even punished for negligence if they don’t. Through France’s Non-assistance à personne en danger (or Duty to rescue), the liability of the photographers who pursued Princess Diana’s car on the day that she died was investigated. The charges against them were that of negligence – they failed to render assistance to the victims (they were taking photographs of the dying celebrity in the car) .Eventually, the prosecutor dropped the charges as the driver was to blame. But because of the high-profile case that was, the question of ‘moral duties’ of citizens was raised.

In India, it doesn’t take much for a crowd to gather (not just photographers). Curiosity tends to get the better of most people on the streets, many of whom often will stop traffic just to get a quick (or long) peek at whatever is happening. Even accident spots aren’t spared. WhatsApp forwards that preach road safety are almost always accompanied by gruesome, bloody videos of fatal accidents with a crowd often circling the scene.

Unfortunately for victims of road accidents, crowds are just observers, and often hesitate to help, and with good reason. With accidents come the police, and with the police come investigations. Assistance is therefore, not always easy or instinctive. This is primarily because people are unaware of Section 134A of the Motor Vehicles Act – the Good Samaritan Law. It defines a good Samaritan as a bystander at the scene of an accident who offers to provide medical or non-medical assistance to the injured, by either calling for an ambulance, the cops or even taking the victim to the hospital themselves. These eyewitnesses, who are assumed to have acted in good faith and no expectation of reward, are shielded from legal inquiries by the police or hospitals. No personal details are required from them, their identity needn’t be disclosed, and they cannot be pulled into any investigation that may occur after the accident: no civil or criminal liability. This is to ensure that an act of goodwill driven by empathy and a sense of social responsibility is respected. But this law, enacted for all the right reasons, is not implemented.

According to a multi-city survey conducted in 11 cities by the not-for-profit SaveLIFE Foundation with a sample of 3667 people, including the police and hospital administrations, nearly 90% were unaware of this law and a little under 53% of good Samaritans have been detained by the police. Another aspect of the law which saw a shocking 0% compliance is mandatory charters which are meant to be placed in hospitals; which were not. This isn’t just alarming, it’s unlawful.

This is a recent addition to the larger Motor Vehicles Act, having been incorporated following the directions of the Supreme Court in Save Life Foundation vs. Union of India. England, Wales and Ireland have similar laws, all having been recently enacted. England and Wales have “Social Action, Responsibility and Heroism Act” which looks at some Samaritans as ‘heroes’.

The roads in our country are dangerous, for pedestrians and vehicles, alike. Roads everywhere are either congested, narrow, falling apart or un-navigable, making accidents a common occurrence. According to data by the ministry of road transport and highways, Uttar Pradesh tops the list of maximum number of road deaths and Maharashtra isn’t far behind. An average of about 150,000 people die in road accidents every year. The WHO in its ‘World Report on Road Traffic Injury Prevention, 2004’ has projected that by 2020, road accidents will be one of the biggest killers in India.

Let’s piece these statistics together: 150,000 deaths, of which about 50% died due to the lack of immediate medical care, during what’s called ‘the golden hour’, the first hour of injury (WHO). According to the survey, only 29% of the participants were willing to escort a victim to hospital, 28% were willing to call an ambulance, and only 12% would agree to call the police. This is a worrying minority vis-à-vis the number of deaths. While the main reason for their hesitation comes from the fact that they fear the police, what is also significant is the fact these percentages prove that police interrogations deter people from the moral choice of saving a life. And that points to a larger problem of empathy. Respondents shouldn’t just be empowered to act but also encouraged to, taught to act swiftly and consider it their social responsibility for the benefit of society. Also, and more importantly, the police and hospital administration must ensure compliance to the SC judgment and protect the rights of good Samaritans.

Source: Hindustan Times, 30/11/2018

The law of happiness

Nations that ensure the rule of law are also home to happy people. Policy-making must strive for the larger satisfaction of the people with public institutions they have to regularly approach

Happiness has come to be accepted as a goal of public policy. And this discourse has given a fillip to a new narrative where the interconnections between law, governance and happiness are being searched. Why do these connections matter? Experiences from several nations confirm that the countries with higher GDP and higher per capita income are not necessarily the happiest countries and there exists a link between the state of happiness and rule of law.

The World Happiness Report (WHR) 2018, which ranked 156 countries, placed India at the 133rd place on the index of global happiness. While India’s performance on this can be attributed to several factors, there’s no denying the fact that there is an intrinsic relationship between law and people’s happiness. The WHRs, over the years, confirmed that people tend to have poor mental health, a low score of subjective well-being and poor perception about the governance and law and order, despite high income levels.

The curious question in this discourse is how the law is linked with happiness. In an environment in which laws are gradually becoming reactive, regulatory and penalising, this question needs some probing.

Jeremy Bentham said the object of the law should be the maximum happiness of the maximum number. Going by popular perceptions, laws and legal regimes are the distributors of unhappiness in many ways. We have about 3.3 crore cases pending in various courts in the country. How does unhappiness emanate from these cases? Each case is not a mere number — it involves tension, anxiety and deprivation to all those associated with it. A group of people — family members, relatives, friends and others of the parties involved — are necessarily affected because of such cases. If we presume that there are about 20 persons in each case belonging to one or the other parties, we get a number of about 64 crore. Interestingly, none of them would be in a state of happiness on account of being linked to the case. Inevitably, the criminal justice administration for these people is a source of unhappiness.

Moreover, not more than 30 per cent people approach the courts in India. There is a visible decline in civil litigation, which suggests that a large number of people in the country are living with unresolved conflicts. This too dents the state of happiness in general.

Criminal justice has far-reaching consequences for the lives of people — it brings difficulties when it does not act, it causes turbulence when it does. Millions of accused, victims, suspects, witnesses and others have poignant tales about the actions and inactions of the criminal justice administration. The satisfaction level of people is far too low in this country when it comes to the police and courts.

The relationship between crime and happiness offers some interesting insights. Vesna Nikolic, a noted victimologist, says that making people happy is the best crime prevention. Do happy people become victims less often than unhappy people, and if so, why? Do happy people commit crimes, or do people commit crimes in order to achieve happiness? The connection between crime and happiness is understandable from the experience of Bhutan, which introduced Gross National Happiness (GNH) as a measure of good governance. The data show that a great majority of the Bhutanese population are happy (of whom 41 per cent are extremely happy), and only 4 per cent reported being victimised by crime over the last 12 months. Further, the crime rate in Bhutan is extremely low. A negative correlation between crime/victimisation and happiness is observed.

The World Reports on Happiness in selected countries and their crime and victimisation data present remarkable trends. The impact of criminal victimisation on happiness is often negative. Analysis from six nations, namely, Finland, Denmark, Philippines, South Africa, India and Sri Lanka shows that at least one of the four crime variables share an inverse relation with the happiness score of the respective nation. This leads to the conclusion that individuals living in nations with high crime rates are less happy and satisfied than individuals living in nations with a comparatively lower crime rate.

Does rule of law make you happy? The countries scoring high on the Rule of Law Index, a measure used by the World Justice Project, are those who are higher on the index of happiness as well. Among these countries are Denmark, Sweden, Finland, Norway, the Netherlands and Austria. The fact that happiness ought to be part of the agenda to improve rule of law, and vice versa, is a new thrust in the emerging policy discourse in many jurisdictions. The institutionalisation of a happiness framework as a measure of achievement for policy goals is now being debated. Madhya Pradesh has set up a Happiness Department to achieve such objectives.

It is probably time to change the narrative — to shift the discourse of policy making towards the larger satisfaction of the people with the public institutions they have to regularly approach for various purposes.

The ideologies promoted by the government also have an effect on the overall satisfaction of the people. Besides poverty, unemployment and other issues of sustenance, the outlook of the government on religion, gender, sexuality, etc. also determine the contentment of the governed. For example, in India, increasing incidents of cow vigilantism, communal and gender bigotry, ultimately make the society intolerant and dissatisfied. It is, perhaps, time to turn the narrative of law, policy and development, towards building a happier society.

Source: Indian Express, 24/09/2018