Arunav Kaul

Argentina Is Taking a Unique Route to Try Myanmar’s Leaders for Crimes on Rohingya

Universal jurisdiction allows states to try persons accused of grave crimes regardless of the place where the crime was committed or the nationality of the accused or the victim.

In a landmark judgment delivered in May earlier this year, the Argentinian Federal Court of Appeals reversed a previous verdict and decided to pursue a case against Myanmar’s leader Aung San Suu Kyi and other senior officers for committing atrocities against the Rohingya in Myanmar.

In September 2020, a clarification was sought from the prosecutor of the International Criminal Court (ICC) on whether the universal jurisdiction would duplicate or disrupt the ICC’s investigation. Additionally, the matter is also pending in the International Court of Justice (ICJ).

The Rohingya refugee conflict began in 2012 in the Rakhine state in Myanmar where thousands of Rohingya were systematically killed and forced to flee to nearby countries which included India and Bangladesh. The admission of the claim in Argentina brings a sense of hope for justice for the persecuted community, which has been left homeless for years now.

While it is not clear how the court would go about gathering evidence and summoning Myanmar’s top leaders, the fact that a court located in the opposite part of the globe has been able to take cognisance of the case under the principle of universal jurisdiction is quite remarkable. And it begs the obvious question — what legal framework does India have to deal with serious international crimes in India? What is universal jurisdiction and how does India approach it?

Also read: COVID-19: Rohingya Refugees in India Are Battling Islamophobia and Starvation

The use of universal jurisdiction globally

Universal jurisdiction is a unique concept which, in its broadest sense, allows states to exercise criminal jurisdiction against a person accused of grave international crimes regardless of the place in which the crime was committed or the nationality of the accused or the victim.

Certain countries have used this principle to try individuals in the past and as per a report published by Amnesty International in 2012, various states have incorporated different forms of universal jurisdiction for genocide, crimes against humanity and torture.

In certain countries, the constitution itself gives states the power. For instance, Section 118 of the Argentinean constitution allows for domestic jurisdiction over crimes committed outside Argentinean territory if the crime is incompatible with international law. Other countries have adopted different approaches to deal with universal jurisdiction. For instance, countries such as Switzerland, the Netherlands, France etc. have passed legislation to give effect to universal jurisdiction and provided procedural requirements to exercise it. A recent study by TRIAL International analyses the scope and extent of universal jurisdiction in some of these countries.

File Photo: Myanmar’s leader Aung San Suu Kyi speaks on the second day of hearings in a case filed by Gambia against Myanmar alleging genocide against the minority Muslim Rohingya population, at the International Court of Justice (ICJ) in The Hague, Netherlands December 11, 2019. Photo: Reuters/Yves Herman

International crimes and universal jurisdiction in India

India has so far failed to criminalise grave international crimes such as genocide and crimes against humanity. It ratified the Genocide Convention, 1951 in 1959. However, to date, there exists no domestic law on genocide. Also, India has not yet included the provision on crimes against humanity in its domestic criminal code. Although the Rome Statute of the International Criminal Court defines genocide, crimes against humanity and war crimes in 2002 (and the crime of aggression in 2010), India is not a state party to the statute.

One of the Acts that specifically deals with war crimes in India pertains to the Geneva Conventions Act, 1960 which was passed to give effect to the Geneva Conventions, 1949. Although the Act provides ground for the universal jurisdiction for the grave breaches of Geneva Conventions, the statute has rarely been used by courts and suffers from various infirmities. Lastly, while the Indian Penal Code, 1860 has a provision that provides for extra-territorial jurisdiction for crimes, the provision has a very limited scope, it is archaic, and does not specifically deal with the principle of universal jurisdiction.

Also read: The ICJ’s Ruling on the Rohingya and What It Means for India and the CAA

Universal jurisdiction as a symbol of hope?

Universal jurisdiction has various limitations and it is certainly not a magic wand that provides a one-for-all solution to the problems. Summoning the authorities from a different country and taking them to a trial is no easy task. However, it is worth noting that universal jurisdiction has the potential to strengthen justice in the international sphere.

One of the classic examples in the recent past pertains to the case filed in 2010 in an Argentinian court against the human rights abuses committed under the Franco dictatorship in Spain. Although specific individuals in Spain could not eventually be tried, the process triggered the exhumation of bodies of those who had been buried in mass graves during Franco’s dictatorship. Whatever may have been the political inclinations behind this case, the Argentinian court’s decision coupled with the historical and political connect between Argentina and Spain created an impact that reverberated across judicial circles. These instances provide a sense of hope for the victims and encouraged them in their fight for justice.

Likewise, Myanmar’s history is tied with that of India’s. Actions of neighbouring states have the potential to create an impact and although India has accepted many refugees, efforts must be taken to pressurise Myanmar to cease the violations. Rohingyas in India have been living in constant fear, surrounded by an environment of hatred and animosity.

Furthermore, there have been instances where India has deported some refugees back to Myanmar. To cease the deportation of refugees, an intervening application was filed in the Supreme Court in 2017 as these actions ran contrary to various international norms. The case is still pending in the Supreme Court and no concrete outcome has come from it so far.

Sadly, there exists no legal structure in India to exercise universal jurisdiction for serious international crimes. To make universal jurisdiction a reality, it would be necessary to legislate on serious international crimes such as genocide and crimes against humanity.

India has seen its fair share of mass violence in different parts of the country and the need to introduce these laws is therefore imminent. At the same time, states need to make a stronger commitment to the world community towards better prospects of peace and justice.

Also read: The Rohingya Crisis Is Another Colonial Legacy

Exercising universal jurisdiction can be one of the ways of furthering this commitment. Such an action would also be of symbolic significance for victims who can be assured that they are not alone in this fight and that the neighbouring states, in which they are seeking refuge, do share their quest for justice.

Arunav Kaul is a lawyer and currently pursuing his masters in Transitional Justice and Human Rights from Geneva Academy. Views are personal.

India Doesn’t Need Hindi to Unify the Masses

In a diverse country, identifying one common language is a difficult and needless exercise.

The recent National Education Policy draft has, yet again, sparked the age-old debate on the imposition of Hindi. A clause in the draft report recommended mandatory Hindi classes in all schools. However, after much backlash, especially from southern states like Tamil Nadu, the clause was dropped. The very insertion of such a clause speaks volumes about the mindset of the people in the current administration.

Portraying Hindi as a national language that should be synonymous with India as a nation is not a new trick of the government. In 2018, ahead of the 11th World Hindi Conference, the government proposed to make Hindi an official language of the UN. Even then, it received severe criticism from people and politicians belonging to the non-Hindi speaking belt.

The question that therefore arises is, why is there an incessant need to impose a single language in the country?

Searching for a single identity

India is a nation comprising of people from different backgrounds, religions, languages and culture. In such a diverse nation, there is a constant search to find a common attribute that binds people together into a single identity. In this regard, language is most often imposed on people by governments.

Also Read: Language Policy: Education in English Must Not Be the Prerogative of Only the Elites

A monolingual nation is not only perceived to bring people together but can also help in the smooth administration of policies, and most importantly spread of ideas. One of the early examples where a language was used as a unique identifier to bring the masses together was in France. French was not always the most common and popular language in France.

It was due to several government measures over the years and stringent education policies that resulted in French being the single and most popular language across the country. The policies were so strict that for several years, any language other than French was literally non-existent in France.

Search for a single language in the pre-independent era

In India too, several attempts were made in the past to select one common language to unite the people. With centuries of British rule, English emerged as the main mode of communication in higher education and the Indian administrative sector.

This created issues as several politicians from the North viewed English as a foreign language and wanted it to be replaced with Hindi. Politicians from the South preferred English as a medium for communication and wanted it to be retained. Perturbed by this question of a single language, Jawaharlal Nehru in a 1937 essay wrote that there is a need to have an all-India language of communication.

At that time, Nehru and even Gandhi advocated for Hindustani (an amalgamation of Hindi and Urdu) to be adopted as a a tool to unite not just people in the North and the South, but also Hindus and Muslims.

Pandit Nehru and Mahatma Gandhi. Credit: UN Photo

Constituent Assembly debates

The Constituent Assembly debates witnessed aggressive arguments from several members, particularly from R.V. Dhulekar, a renowned freedom fighter from Uttar Pradesh. He opined that Hindi should be recognised as the national and the official language of the country. Some members also demanded that the official version of the Constitution be in Hindi, with an unofficial version in English.

Also Read: Why Children Should Learn in Their Mother Tongue

However, the request was rightly refused. The primary contention in the assembly was that there are several languages such as Bengali, Oriya, Tamil that are ancient and have historical significance. In such a scenario, imposing Hindi across the country would be totally unjustified.

To rest the debate, the assembly finally adopted a formula devised by notable Constituent Assembly members K.M. Munshi and Gopalaswami Ayyangar.

Ayyangar articlulated the limitations of Hindi in the assembly. Through a series of anecdotes and examples, he showed that Hindi was not modern or advanced enough to capture the technicalities of the legislation or interpretation of the law by courts. Therefore, the formula struck a bargain by not providing any national language, but by giving Hindi in the Devanagari script the status of official language of the Union along with English.

Single language – not a necessity

It is clear that India, unlike several European countries, has no national language. In a diverse country, identifying one common language is a difficult and needless exercise. Some may ask, if not a common language, then what does unite the people in India?

The answer to this question is our united struggle for independence, our sentiments towards the Constitution, the national flag and the anthem that bind us together. These sentiments cut across the barriers of ethnicity, language and religion. It is due to these sentiments that people turn up in millions, despite sweltering heat, to vote in elections.

Also Read: Pushing Hindi as Politics, Not Hindi as Language

Our belief in the Constitution and the government set up provided therein has kept us going over all these years. The government should work towards strengthening these sentiments rather than focussing on imposing one language in the country.

It was the dream of our Constitution makers to build an inclusive India comprising of people from all linguistic backgrounds and it is imperative to retain this dream for generations to come.

Arunav Kaul is an advocate and works in the public policy sphere focussing on judicial reform. All views are personal.

It Took 20 Years to Convict Salman Khan. That’s Normal – But It Shouldn’t Be

Long-pending criminal litigations have become the norm rather than the exception in India.

Should it really take 20 years for a case to be decided? That is the question I am left pondering over after witnessing the entire episode on Salman Khan’s conviction.

Long-pending criminal litigations have become the norm rather than the exception in India. The news is often filled with age-old cases getting decided after 15 years, 18 years, 20 years…as if the race is for the lengthiest case in the world.

Here are some recent examples: Gurmeet Ram Rahim Singh, a self-styled godman, was convicted on the charges of rape 15 years after the case was registered; Daler Mehndi, who was accused in a 2003 human trafficking case, was convicted after 15 years in 2018; Lalu Prasad, recently held guilty in the fourth fodder scam case, was convicted after 21 years.

Khan is no stranger to the problem of long and lengthy cases that plague the Indian judiciary. The “hit and run” case in which the actor was declared guilty by a lower court in Mumbai went on for 13 years, between 2002 and 2015. The blackbuck case is another feather in his cap. It has been 20 years since the complaint against Khan for killing blackbucks was filed. After a series of convictions and acquittals by the lower court and the high court, Khan has yet again been found guilty.

A snapshot of Salman Khan’s case data

The chief judicial magistrate of Jodhpur district delivered a 201-page judgment in the case of State v. Salman Khan. As per the information provided on the e-courts website (a government-maintained website that helps tracking day-to-day progress of cases filed in courts), the case was formally registered in the court on November 9, 2000, under the Wildlife Protection Act. Although the entire history of the proceedings is not provided on the website, hearings from July 6, 2013, onwards are available. Figure 1 provides the percentage of hearings spent on different stages since July 6, 2013.

One can clearly note that since 2013, the court has spent maximum hearings on the evidence stage, followed by arguments and then final arguments stage. There is no doubt that the evidence stage constitutes a major chunk of the hearings in subordinate courts.

In a separate article published in ‘Approaches to Justice: A Report by DAKSH‘, an analysis of hearings in subordinate courts in Delhi revealed that 36% of the hearings were dedicated to the evidence stage. This may be primarily due to the fact that cross-examination of several witnesses and recording of evidence takes a considerable amount of time. The absence of parties and witnesses can also prolong the proceedings, leading to multiple hearings at the evidence stage.

Further, data from the e-courts website show that on average, there were 13 days between each of the hearings in Khan’s case. That means that the case was listed at least twice every month. However, one must note that this does not mean that the case was effectively heard on every hearing. Sadly, the e-courts website, which is expected to record the “business on date” for each of the hearings, has not provided these details. It is therefore difficult to ascertain the number of times the proceedings were stalled due to unnecessary adjournments.

Inordinate delays in subordinate courts

As per the National Judicial Data Grid (NJDG), of all the cases pending in subordinate courts in the country, 70% are criminal cases. Amongst these criminal cases, 25% are pending for more than five years. Data from the NJDG suggests that magistrates’ courts are burdened with a huge number of criminal cases. I had previously written an article studying the performance of the top ten magistrates’ courts with the most number of cases pending in the country. Figure 2 provides the oldest cases that were pending in these courts at the time of the study.

The metropolitan magistrate court in Ahmedabad, at the time of the study, had the oldest case dating back to 1961, followed by the civil court in Vadodara which had the oldest case from 1962. With such old cases still pending in criminal courts, it is critical to take up the right initiatives to ensure that cases in the future do not meet the same fate.

Data from DAKSH’s database shows certain cases that took the most amount of time to be disposed in the subordinate courts. Figure 3 presents the years it took for these cases to be disposed in different states.

As per the database, a regular darkhast case in Shrigonda, Maharashtra had taken 63 years to be disposed of. Similarly, an original suit case in the district of Sant Ravidas Nagar in UP took 62 years before it was finally disposed of in the year 2015. However, one must note that these are exceptional cases in our judicial system and do not represent the average disposal timeframe. Nonetheless, unnecessary delays which drag cases on for a long period of time need to be further studied and rectified.

While it is unclear whether Khan will finally be acquitted by the Rajasthan high court, his long-drawn criminal litigation raises several concerns on the unfortunate state of criminal cases in the country. Khan’s case and various other cases pointed out in this article are just some of the examples that highlight the state of the Indian judiciary. Without proper measures, cases will keep getting dragged on for years together. How many more such age-old cases are coming to a close in the nearby years? Only time will tell.

Arunav Kaul is a research associate at DAKSH, Bengaluru, a civil society organisation that undertakes research activities to promote accountability and better governance in India. Views are personal.

Rethinking the Way India Allocates Judges to Different High Courts

In addition to using a more scientific and data-oriented method to calculate the number of judges needed in a court, the appointment process for the judiciary also needs to be made simpler.

File photo of the Allahabad high court. Credit: PTI

The recent protests for increasing judges’ strength in the high courts of Karnataka, Calcutta, Orissa and Hyderabad have received wide traction amongst the general public. The rising gap between the sanctioned strength and the working strength in high courts has become an important subject-matter of public debate. The Memorandum of Procedure (MoP) that has been followed for appointment of high court judges demonstrates the long and complicated procedure. The infographic below provides a pictorial representation of the entire process.

Identifying the problems with judicial vacancies

The primary problem in the entire process lies at the very beginning, when the chief justice of the high court gives his/her recommendations. While the manner in which the chief justice assesses the vacancies is unclear, data collated from the Supreme Court’s annual reports for the years 2016 and 2017 and the Court News (quarterly newsletter of the Supreme Court) for 2015 indicates the haphazard manner in which appointments have been taking place in the country.

Vacancy percentage

While the sanctioned strength in the high courts remained unchanged in 2017, there was an increase in sanctioned strength in various high courts in 2016. However, the vacancy percentage hardly saw any decline. The figure below depicts the vacancy percentage in the four high courts that have seen protests from the bar recently.

There was an increase in vacancies in all the four high courts in 2016. Although the high courts of Hyderabad and Karnataka saw a dip in vacancies in 2017, it was only marginal.

Allocation of judges and pending cases

While several high courts in the country suffer from a high number of vacancies, the allocation of working strength in different courts are quite arbitrary.

Note: Data for number of judges and pending cases have been collated from the Supreme Court Annual Report and Court News.

The haphazard distribution of judges across the high courts can be clearly seen. While the high court of Allahabad has the highest number of pending cases in the country and the highest number of judges, this is not the trend in several high courts. A clear variation can be observed in the high courts of Bombay and Madras, which have a similar number of pending cases but varying judicial working strength. The high court of Bombay has an average working strength of 68 judges, while the high court of Madras has an average of only 44 judges. Similar trends can also be observed for other courts, such as the high courts of Karnataka and Calcutta.

Average pendency versus average disposal in courts

Maintaining adequate judicial strength throughout the year is important. It ensures that cases get disposed of expeditiously without going into judicial limbo. Data on disposed and pending cases collected from DAKSH’s database point out that cases generally tend to get disposed of quickly. However, due to several procedural delays, cases remain pending in the system for a longer period of time, thus increasing the average pendency. It is then important to have the requisite judicial strength across different years, to deal with the immediate incoming caseload.

Before delving into data any further, it is important to understand the distinction between average pendency and average disposal, which are often used interchangeably. While the former is calculated based on cases that are still pending in the court, the latter is calculated based on cases that are disposed of. Data from DAKSH’s database suggest that cases in the high courts get disposed within two years on average, while the average pendency in high courts is three years. A similar trend can be seen in subordinate courts, where the average disposal time is two years, while the average pendency is six years.

A recent study by the Vidhi Centre for Legal Policy on writ petitions in the high court of Karnataka also displayed a similar trend. As per the study, 60% of cases disposed of before the Bengaluru bench were disposed in the same year in which they were filed. Hence, one can conclude that cases generally tend to get disposed of quickly, failing which they remain in the judicial system for a longer period of time. This may be due to several reasons, including procedural delays, adjournments by the parties, etc.

Appointment procedure under the MoP

The overall length of the entire selection process may also prove to be problematic. The recommendation process given under the MoP begins from the chief justice of an individual high court and passes through several checkpoints of state and central executives before it finally lands with the collegium.

Despite this time-consuming procedure, the finality of decision-making and its implementation lies with the Centre. The Supreme Court recently commented upon the inordinate delays in appointment of judges by the executive. It should be noted that the MoP did provide timelines for certain stages. However, due to the paucity of information in the public domain, it is unknown whether these timelines were followed.

Lack of a scientific method

The rationale behind assessing sanctioned strength or determining working strength in different high courts is unclear. How is the sanctioned strength decided? On what basis are vacancies determined? These are some of the questions that need to be answered. While there have been discussions on adopting a scientific approach towards judge strength calculation in the subordinate courts, the haphazardness in the working strength of judges in high courts shows the need to adopt a more structured approach.

One of the methods devised in the past to calculate judicial strength in subordinate courts was the ‘rate of disposal method’. It was recommended by the Law Commission, which aimed at calculating judicial strength based on the number of cases disposed of by judges. Due to the method’s several shortcomings, the National Court Management Systems Committee recommended a weighted caseload approach based on the unit system. The method differentiated between different types of cases and relied on the unit system, a performance evaluation system for subordinate court judges, to assess judicial strength.

Deviating from these proposed methods, it is important to adopt refined calculation methods for subordinate courts and high courts. A ‘time-based weighted case load’ approach, a method commonly used internationally, would help in assessing the required judicial strength more efficiently. It takes into account the actual time spent by judges in different types of cases at varying stages by way of a time and motion study. Such a method can help decision makers in taking a scientific approach towards the allocation of judges in different states.

It is time that a scientific and proactive approach be taken to determine judicial strength and allocation of judges in different high courts. Even the appointment process needs to be made simpler, with specific timelines for each stage. Attempts must be made to disseminate information on judges’ appointments, which can help in tracking the average time taken in the entire process. A positive step towards these initiatives can go a long way in combating the problem of mounting vacancies.