Protecting the Dissent: Relationship between Individual and the Parliament

Recently, in the Writ Petition filed by Justice (Retired) Markandey Katju, former Judge of the Supreme Court, challenging the unanimous resolutions passed by the Rajya Sabha on 11^th March, 2015 and the Lok Sabha on 12^th March, 2015, condemning the expression his views on Mahatma Gandhi and Subhash Chandra Bose the Supreme Court has appointed noted jurist Fali S. Nariman as amicus curiae and has requested the Attorney General for India for assistance.  In the order dated 3^rd August, 2015, the Supreme Court has observed that it is prima facie  not impressed with the argument that any fundamental right had been violated enabling Justice Katju to approach the Supreme Court. Perhaps, because, it is a ‘hard case’. In the contemporary times, Gopal Subramanium, who is appearing for Justice Markandey Katju is re-emerging as one of the strongest defenders of freedom of speech and expression and Constitutionalism. His arguments in Devidas Ramchandra Tuljapurkar case (decided May 14, 2015) have been vividly noticed by the Supreme Court:

93. There can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation.

103. Mr. Subramanium would submit that the free speech is a guaranteed human right and it is in fact a transcendental right. The recognition of freedom of thought and expression cannot be pigeon-holed by a narrow tailored test. The principle pertaining to the freedom of speech has to be interpreted on an extremely broad canvas and under no circumstances, any historical personality can cause an impediment in the same. It is urged that the Constitution of India is an impersonalised document and poetry which encourages fearlessness of expression, cannot be restricted because of use of name of a  personality. Learned senior counsel has further submitted that freedom to offend is also a part of freedom of speech. Poetry, which is a great liberator, submits Mr. Subramanium, can be composed through a merely voice explaining plurality of thought. He would submit the instant poem is one where there is “transference of consciousness” that exposes the social  hypocrisy and it cannot be perceived with a conditioned mind.  

104. The principle that has been put forth by Mr. Subramanium can be broadly accepted, but we do not intend to express any opinion that freedom of speech gives liberty to offend. 

Amongst the various issues that emerge in Justice Katju’s, a few are of utmost importance. Most prominent amongst them is that of freedom of expression. It requires no reiteration that freedom of speech and expression is one the fundamental pillars on which any democracy, including ours, rests. Therefore, it should logically follow that a person has right to express his views fearlessly, without there being any threat of condemnation by any authority or being dissuaded by spectre of any form of repression by persons not in authority.

An individual may have reasons to disagree with Justice Katju’s view that Mahatma Gandhi injected religion into country’s blood stream; however, it does not follow that an institution such as the Parliament gets any right to ‘have an opinion’ to condemn Justice Katju (or any individual) merely for expressing his opinion. Condemnation by an individual is not the same condemnation by an institution. The Constitution does not contemplate that the Parliament would even take cognizance of expression of opinions by individuals who are not speaking in their official capacity. Where in the law making process, opinion of citizens has to be considered – there is a separate mechanism for the same. This is also supplemented by the Rules made by both the Houses. For instance, Rule 157 of the Rajya Sabha Rules of Procedure and Conduct of Business provides that a resolution “shall not refer to the conduct or character of persons except in their official or public capacity”. Clearly then, Justice Katju’s views could not have been subject matter of a resolution in the Rajya Sabha. The Parliament is obliged to secure freedom of speech and expression, and the limited restrictions that it can impose have to be ‘by law’ legislated by them, which has to be applied by executive if applicable, and individual’s liberty is to be safeguarded by the judiciary. That is the structure contemplated under the Constitution.  Separately on another issue, on the day when the case was first listed, one of the arguments that arose was whether, just like the Parliament as an institution – it would be legal of the judiciary  as an institution to take stand in respect of debated historical fact and then condemn an individual unheard. It was submitted that an institution taking notice of things outside its scope of functioning was unheard of.

Justice Katju’s view on Mahatma Gandhi and Netaji may or may not be correct. The fact remains that similar views have been taken by a number of academics. In the contemporary times, when there is serious affront to academic independence and academic freedom, the unanimous expression of condemnation without hearing the person to be condemned or properly considering the basis of his views, poses a great danger to academic freedom in the country. It sets a bad precedent to say the least.  The unanimous condemnation of Justice Katju by both houses of the Parliament does have an extreme chilling effect and is bound to result in noticeable restraint in expression of dissent and alternative views – which certainly is not in the nation’s interest. Such chilling effect is directly results in generation of unprecedented public opinion against an individual, in respect of which there is and cannot be any remedy in law. In my view, ‘academic freedom’ is not limited formal academics alone, but ought to be extended to every person who engages himself in scholarly pursuits. Incidentally, it may be mentioned that the South African Constitution, which draws much from our Constitution expressly recognizes the right to academic freedom.

Article 51-A (h) of the Constitution provides that “It shall be the duty of every citizen of India to develop scientific temper, humanism and the spirit of inquiry and reform;”. Development of scientific temper necessarily involves observation, analysing, questioning and hypothesising. Central to development of ‘scientific temper’ is the spirit of inquiry – which does not accept anything without testing and trial, and the freedom to differ from previous conclusions, without being penalised for the same. Passing of unanimous resolution by the Parliament, condemning Justice Katju’s view, which is symbolic of academic freedom and expression of dissent, seeks to suggest that Parliament does not seem to believe that inquiry and expression of any perspective other than the popular one is relatable to the freedoms guaranteed under the Constitution.   One must not forget that transition of India into a modern nation is a consequence of inculcation of ‘scientific temper’ by the likes of Sir Syed Ahmad Khan and Raja Ram Mohan Roy.

The fundamental right of a person can be said to have been violated when a person has been deprived of his right to freedom of speech and expression except in the manner provided in the Constitution, or has been treated arbitrarily, or his right to reputation has been prejudicially affected.  In Justice Katju’s case, the passing of the resolutions, in respect of which the Parliament lacked jurisdiction, is evidently without the authority of law and suffers from all three vices. Undeniably, the undercurrent of such resolutions is to ‘shame’ the person who has ventured to express his views, which do not resonate with the popular perspective.

An overarching issue that also arises is whether the Parliament can arrogate unto itself the power to adjudicate, and then to use for itself that power to adjudicate that expression of personal views on historical figures by Justice Katju (an individual) is worthy of unanimous condemnation, that too without affording him any opportunity to explain his case. It had long been settled by the Supreme Court, including that of Indira Gandhi v. Raj Narain (1975), that the Parliament could not perform adjudicatory functions.

Regular reliance to the Parliament’s plenary powers and its comparison with the Parliament of the United Kingdom is untenable. One must not lose sight of the fact that in the UK the Parliament is sovereign, but in India – it is the Constitution that reigns supreme.

In fact, academically, Justice Katju’s case is not a case about Justice Katju at all. It is a case that begs the Supreme Court to define the relationship between the Parliament as an institution and an individual citizen in the framework of the Constitution with reference to the cherished values of the freedom movement.  On a larger level, this case defines relationship between individual and the organs of the State, singularly or as a conglomerate. I am hopeful that values of the freedom movement as enshrined in the text and meaning of the Constitution would only be cemented by the Courts.

  

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Court Fees ≠ Fees for Accessing Justice System

By

Talha Abdul Rahman

Judicial systems contribute to maintaining peace in the society and the ease of access of a reliable judicial system reinforces faith in the rule of law. It is therefore a natural corollary of existence of a judicial system that the procedures and costs in accessing the remedy of approaching the courts have to be only nominal. Judicial system is entitled, as of right, to get funded from tax payers’ money and it is improper for judicial system to increase the costs of accessing the system in order to sustain itself. In short, a litigant is not to be seen as a person accessing “services” of the court and therefore, cannot be treated as “customer” who has to pay up.

On 19^th August, 2014, the Supreme Court of India has introduced a new set of rules called the Supreme Court Rules, 2013 replacing the old set of Rules framed in 1966. While the 2013 Rules do bring in a number of changes, it can be termed as a lost opportunity to hold a consultative process with lawyers as well as litigants to devise a better set of rules ensuring ease and equality of access to justice.  The Supreme Court Bar Association has challenged the 2013 Rules and had requested the Supreme Court to defer the implementation of the 2013 Rules. While the petition to challenge the 2013 Rule is pending adjudication, the request for deferral was declined.

Amongst others, the Supreme Court’s decision to enhance the court fees payable to access the courts and linking the same to the identity of the litigant and subject matter of the case does not seem to promote access to justice. To begin with, no explanation is available in public domain for substantially increasing the court fees, and unless a rational explanation is available for the same, it is difficult to justify the enhancement merely only speculation of increase in the cost of adjudication since 1966.

In any event, as suggested above, it is contrary to public policy to force a litigant to pay “court fees” as a fees to access the judicial system, especially when judicial system is, even under the Constitution, the residuary system of dispute resolution. The importance of civil justice system can be gauged from the following except from Dame Hazel Gen’s Hamlyn Law Lecture (2008):

The civil law maps out the boundaries of social and economic behaviour, while the civil courts resolve disputes when they arise. In this way, the civil courts publicly re-affirm norms and behavioural standards for private citizens, businesses and public bodies. Bargains between strangers are possible because rights and responsibilities are determined by a settled legal framework and are enforceable by the courts if promises are not kept. Under the rule of law, government is accountable for its actions and will be checked if it exceeds its powers. The courts are not the only vehicle for sending these messages, but they contribute quietly and significantly to social and economic well-being.

In fact, 14^th Law Commission of India chaired by Mr. M.C. Setalvad, India’s first attorney general has stated that:

India is, so far as we know, the only country under a modern system of government which deters a person who has been deprived of his property or whose legal rights have been infringed from seeking redress by imposing a tax on remedy he seeks. Our States provides hospitals which give free treatment to persons who are physically afflicted. But if a person is injured in the matter of his fundamental or other legal rights, we bar his approach to the Courts except on payment of a heavy fee.  The fee which we charge is so excessive that the civil litigant seeking to enforce his legal right pays not only the entire cost of the administration of civil justice but also the cost of incurred by the State in prosecuting and punishing criminals for crimes with which the civil litigants has no concern.

While the benefits of court system are reaped by the whole society, the burden of paying the court fees has been conveniently placed on a litigant. This placing of burden on a litigant, ought not to be abused either by the Government or by the Court itself. 

In fact, a civil litigant is also required to pay court fees to sustain the criminal justice system. It will, however, have to be examined separately as to the extent for which the State Governments defrays the expenditures linked to the system of adjudication of criminal and civil cases. The Law Commission had concluded that, “having regard to court fees alone and ignoring other items of expense, to an honest litigant trying to vindicate a just claim, the Court of justice would seem to wear a stern and even cruel frown instead of an inviting and friendly look.”[1]  It can be said that, albeit with a degree of caution, the conclusions of the 14^th Law Commission reached in 1964 continue to be true.

Unfortunately, the 2013 Rules do not make things any better. Increasingly ‘court fees’ are being viewed as quid pro quo for accessing a justice system – akin to an ordinary commercial service.

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[1] Pg 505.

Reform of the Legal Profession

In this article published on myLaw.net, I argue that mere reforms in the legal education in India do not mean much unless they are accompanied by concomitant reform of the legal profession, inter alia, through enforcement of ethical rules of practice. This article provides another perspective in trying to understand why the top law schools have not been able to motivate its law graduates to join litigation.

Service Tax on Lawyers - What is the State taxing?

In this piece, I argue that imposition of service tax on representational service and on arbitral tribunals may not have necessary degree of coherence with rule of law and forward policy. 

Anna's fight against 'Corruption' - What it means?

Professedly, Anna's 'movement' (I intend to analyse at a later stage whether the stir qualifies as a movement, or it was merely a 'mass protest'), and support lent to him by the opposition was against 'corruption'. I am not aware if any participant in the movement, either from the civil society or from ‘Team Anna’ has attempted to define ‘corruption’.  This concern has been expressed in an EPW editorial.

The definition of ‘corruption’ is rather important, because it would determine how inclusive the support from the demos of India would be. Having said this, I do not mean to undermine the importance of economic corruption. We really need to ensure is that there is no corruption in terms of restrictions to access to opportunity. This access to opportunity can be impeded also by demand of money; but that is not the only way. Therefore, the word ‘corruption’ has to have a broader and more inclusive definition including denial of rights and impeding access to opportunity either for personal gain or for furtherance of a personal agenda or political views. Such an approach is sine qua non because anything else would leave the pot only half filled that too with leakages.

The above approach is to deal with the situation of systematic denial of rights by plugging in the systemic deficiencies. A situation of the nature highlighted by Sachar Committee Report is what I am trying to cover in the definition of ‘corruption’.  For example, when the people in charge of affairs of government abuse their position not for their personal financial gains (but for other reasons) and keep a rightful candidate out of the (participative) government (because of religion, race, caste or kinship), they should be held accountable.  

The conversation between a father and his son in The Kite Runner by Khaled Hosseini is instructive on this point: “There is only one sin, only one. And that is theft. Every other sin is a variation of theft. Do you understand that?When you kill a man, you steal a life. You steal his wife’s right to a husband, rob his children of a father. When you tell a lie, you steal someone’s right to the truth. When you cheat, you steal the right to fairness. Do you see?”. This analogy can be extended to ‘corruption’ as well.

In this sense, the proposal under the Draft Communal Violence Bill (also see comments here) to criminalize dereliction of duty by state machinery during communal violence which is also based on some evidence is an attempt to remedy one species of the genus that is ‘corruption’. 

Lawyers' boycott and the accused persons’ right to be defended in court

While ANHAD's Report and other events raise concern about release of Muslim youths wrongfully detained in the police custody in relation to alleged acts of terrorism, a cognate issue that should not be missed is that of access to sound legal advice at the appropriate time. 

Some bar associations (such as that of Pune and  Faizabad) have passed resolutions to not defend any person accused of terrorist acts, it particularly affects minorities as they are 'labelled' as terrorists. Some lawyers who withstood by the ethics of the legal profession in such hard times had also filed writ petitions in before the High Court challenging such resolutions passed by the bar association. However, a recent decision passed by the Supreme Court is instructive on this point.

 In A.S. Mohammad Rafi v. State of Tamil Nadu, AIR 2011 SC 308, the Supreme Court of India observed that “several Bar Associations all over India… have passed resolutions that they will not defend a particular person or persons in a particular criminal case… Sometimes the Bar Associations passes a resolution that they will not defend  a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case...” . Further that “such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”

Resolutions similar to the resolution of the Coimbatore Bar Association are known to have been passed by the Bar Association of Faizabad and apparently also by the Bar Association of Pune that prevented the alleged ‘terrorists’ from having any legal representations. The impact of absence of effective legal representation and denial of right to have a counsel of one’s choice would probably be assessed when these cases reach the appellate stage. One can hope that decision would be handy in at least ensuring persons branded as terrorist merely by virtue of their religious and social association have access to a lawyer.

I have commented on this aspect earlier and at length on the Law and Other Things which is available here and more recently here.