Vidhi Centre for Legal Policy

Watch | Does India Have a Colonial Constitution Or is That a Mistaken View?

Arghya Sengupta explains why he believes India’s constitution is colonial and responds to a series of questions challenging his view and also the arguments upon which it is based.

In an interview to discuss his new book The Colonial Constitution, Arghya Sengupta explains why he believes India’s constitution is colonial and responds to a series of questions challenging his view and also the arguments upon which it is based. In a 45-minute interview to Karan Thapar for The Wire, Sengupta – who is director, Vidhi Centre for Legal Policy – is questioned about his two broad reasons for believing the constitution is colonial.

First, he says: “The Constitution of India is a colonial document. It’s colonial for the simple factual reason that it is heavily borrowed from the Government of India Act, 1935, a fact that has been widely glossed over.”

Second, he says: “The Indian Constitution is colonial in a more conceptual sense: it sets up a government that towers over the citizen much like colonial governments tend to do.”

The discussion centres around the constitution, its origin, its character, the structure it adopted as well as the possible structures it avoided. Watch the video for complete details.

‘Takes 1 Year, 5 Months to Dispose of a POCSO Case; UP Has Highest Pendency Percentage’: Report

The report studies trends in POCSO Act cases through the last decade and the judiciary’s impact on its implementation.

New Delhi: It takes an average of a year and five months to dispose of a case registered under the child protection law POCSO and Uttar Pradesh is a state which has the highest percentage of such cases pending, according to a report published by the Vidhi Centre for Legal Policy on the completion of 10 years of the law.

The POCSO Act, which stands for the Protection of Children from Sexual Offences, completed a decade of being on the statute books in India on November 14, 2022.

The report, a product of Vidhi’s Justice, Access and Lowering Delays in India (JALDI) Initiative and the Data Evidence for Justice Reform (DE JURE) programme at the World Bank studies trends in POCSO cases through the decade and the courts’ impact on its implementation.

The study looks at nearly 400,000 POCSO cases and analyses 230,730 of them to understand pendency and disposal patterns.

Though pendency of POCSO cases was increasing gradually over the years, there was a sharp increase of 24,863 cases in the number of pending cases between 2019 and 2020 which could be attributed to the COVID-19 pandemic, the report notes.

The report finds that in Uttar Pradesh – the state with the highest pendency – has more than three-fourths (77.77%) of the total POCSO cases filed between November 2012 and February 2021 pending.

Out of the five districts with the highest pendency percentages, four are in Uttar Pradesh (Lucknow, Hardoi, Budaun and Allahabad) and one in West Bengal (Howrah).

The state with the highest disposal percentage for this time is Tamil Nadu, at 80.2%.

Time for disposal of cases

The report finds that on an average, it takes 509.78 days (a year and 5 months) for a POCSO case to be disposed of as against the one year time period stipulated by Section 35 of the POCSO Act.

Chandigarh and West Bengal are the only states where the average time taken for convictions is within the one year period.

The report also finds that in most states, courts spend more time in hearing cases that ultimately end in conviction as compared to cases that end in acquittal.

For every one conviction in a POCSO case, there are three acquittals. Acquittals are significantly higher than convictions for all of the states studied in the report.

“For instance, in Andhra Pradesh, acquittals are seven times more than convictions; and in West Bengal, acquittals are five times more than convictions. Kerala is the only state where the gap between acquittal and conviction is not very high with acquittals constituting 20.5% of the total disposals and convictions constituting 16.49%.”

The report also says that the evidence stage – involving both the prosecution and the defence presenting evidence before the court to support their case – is the most time consuming out of all stages including preliminary hearing, framing of charge, evidence, and arguments.

The average number of days taken per POCSO case in different states varies between 877.96 days (two years and five months) in Himachal Pradesh to 215.43 days (seven months) in Chandigarh, the report finds. As many as 183.41 (over six months) days are spent on the evidence stage in a typical POCSO case.

In spite of such a lengthy duration of presenting evidence, as Indian Express highlights in its report on this study, 43.44% of trials end in acquittals and only 14.03% lead to convictions.

Over 56% of all the POCSO cases correspond to the offences of penetrative sexual assault (31.18%) and aggravated penetrative sexual assault (25.59%), which prescribe the most stringent punishments under the POCSO Act, the report says.

Among recommendations that the report has is the reduction of age of consent to 16 from 18 with adequate safeguards. Recently, the Delhi high court, granting bail to an individual arrested on charges under POCSO, had said that the intention behind the Act was to prevent sexual abuse against children and not to criminalise the consensual romantic relationships of young adults.

The report also, notably, asks to “create mechanisms to enable judges and prosecutors to have the required skill set to deal with the ‘vicarious trauma’ they experience when dealing with cases of heinous sexual offences committed against children” and allow them to execute their work without the nature of it affecting their mental health.

Experts Divided as Government Moves to Decriminalise Environmental Offences

Changes to the Environment, Water and Air Acts mean that offenders will need to pay only monetary penalties for non-compliance under some sections and will no longer face the threat of imprisonment.

Kochi: Legal and policy experts are divided over the Union government’s move to “decriminalise” existing provisions in three legislations that govern offences relating to the environment to “weed out fear of imprisonment for simple violations”.

The latest proposed amendments to the Environment, Water and Air Acts dated June 30 and July 1 propose to remove the provision of imprisonment as a penalty for offenders.

Therefore, offences – including failure to comply with the Acts’ provisions, such as not meeting safeguards set up to deal with hazardous substances – would attract only a monetary fine. The amendment proposes to also increase these fines. This money will go into specific funds under each Act, and the government will disburse them to compensate the affected parties.

While some legal and policy experts say that such a ‘decriminalisation’ is not a dilution and makes no difference since very few criminal cases are filed under these Acts anyway, others noted that doing away with imprisonment could affect the implementation of these Acts and encourage a pollute-and-pay attitude.

Moreover, the concept of compensatory penalties being directed to specific funds does not ensure that the money reaches aggrieved parties as some existing remedial funds have shown, they added.

What are the proposed amendments?

The Ministry of Environment, Forest and Climate Change (MoEFCC) proposes to make three main changes to legislations governing environmental protection and pollution in the country – the Environment (Protection) Act, 1986, Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 – as per notices uploaded on its website on June 30 and July 1.

One is to remove the provision of imprisonment as a penalty for non-compliance under some sections of these Acts. For example, non-compliance under the Environment Act will currently attract fines (of up to Rs 1 lakh) or imprisonment (up to five years), or both. If violations continue for more than one year after conviction, the imprisonment term can extend to seven years. However, the latest amendment proposes to restrict penalties to fines alone, which an adjudicating officer appointed by the government will authorise.

Another change that the amendment proposes is to increase the monetary penalties for some offences. Under the Environment Act, for example, non-compliance currently attracts a fine of up to Rs 1 lakh and an additional fine may extend to Rs 5,000 for every day of the violation. As per the latest amendment, however, non-compliance will now attract penalties of anywhere between Rs 5 lakh to 5 crore; additional fines can range from Rs 50,000 to Rs 5 lakh per day.

The third change that the amendments seek is to create specific funds under each Act, to house the compensatory money that offenders pay. The amendment moots an ‘Environmental Protection Fund’ under the Environment Act, a ‘Water Pollution Remediation Fund’ under the Water Act and an ‘Air Pollution Remediation Fund’ under the Air Act. The government will disburse these funds to the affected parties.

The changes are being mooted based on “inputs from various stakeholders” that raised concerns regarding current penal provisions, and “to weed out fear of imprisonment for simple violations”, according to the notices for public comments that were uploaded on the MoEFCC’s website.

A boy searches for fish in the polluted sea backwaters near marina beach in the southern Indian city of Chennai July 3, 2013. Credit: Reuters/Babu/Files

A boy searches for fish in the polluted sea backwaters near Marina beach in Chennai, July 3, 2013. Photo: Reuters/Babu/File

Deterrent for compliance?

“That penalties will be increased is a good thing but even these amounts may not be enough to capture the losses to both people and the environment,” said Debadityo Sinha, a policy researcher at Delhi’s Vidhi Centre for Legal Policy. Most offenders can afford to pay these amounts and this could foster a pollute-and-pay attitude, he added.

“Penalties alone are no deterrent for big corporates and industries. With no fear of imprisonment, the implementation of the Acts could be affected,” he said. For instance, willfully delaying or obstructing an officer’s entry or investigation is an offence that currently attracts both fines and imprisonment. But with penalties being only monetary for this as per the amendment, offenders can easily obstruct or refuse to comply, and just pay later, Sinha said.

According to the amendment in the Environment Act, the adjudicating officer will decide the penalty amount based on several factors such as the losses caused to people. The factors listed do not include the assessment of losses that the ecosystem and biodiversity would have borne, or the costs involved in offsetting these losses such as through restoration activities, Sinha said.

Moreover, there are numerous funds that are not really effective – such as the Compensatory Afforestation Fund and Environment Relief Fund (ERF), he added.

The ERF, for example, was instituted under the Public Liability Insurance Act, 1991, following the Bhopal Gas tragedy. It is meant for victims of accidents in the process of handling hazardous substances and compensations awarded by the National Green Tribunal (NGT) are also deposited in this fund. (Incidentally, the Union government has sought to decriminalise this act as well, in its call for public comments on the matter on June 30.)

In 2020, Sinha’s research revealed several problems, including the lack of separate records of contributions that came in via the NGT for environmental damage. The same year, the NGT directed the MoEFCC to take action when it received a plea alleging the non-utilisation of more than Rs 800 crore in the ERF. Similarly, scientists have pointed out several issues with the compensatory afforestation undertaken by the Compensatory Afforestation Fund Management and Planning Authority (CAMPA), including the inability of new plantations to really ‘compensate’ for the loss of old-growth forests.

Also Read: Punishing the Polluters: Why Large Fines Are an Important Step Towards Cleaner Corporations

‘An issue that needs attention’

However, we should “view these proposals as the government’s acknowledgement that pollution control and liability is an issue that needs attention”, said environment policy expert Kanchi Kohli, senior researcher at the Centre for Policy Research, New Delhi.

“Given that these laws have been in existence for over a decade, its footprint is visible not just on private sector profits, but on food security, health, ecology and social life of people living in contaminated areas. It is also important to debate these proposals by asking first, how it will address the long legacy of pollution, livelihood loss and loss of life arising out of past illegalities,” she said.

Secondly, we need to ask whether changing liability from criminal to civil will necessarily change the deliberate and conscious nature of violations that have been in practice for decades, she added.

National Green Tribunal in New Delhi. Photo: PTI

Moreover, such a ‘decriminalisation’ does not make a difference because very few criminal cases are filed under these Acts anyway, said environmental lawyer Ritwick Dutta, co-founder of the Legal Initiative for Forest and Environment. Data from the National Crime Records Bureau shows that every year, just around 10 cases are filed under the Air Act and around 40 under the Water Act, he said.

Criminal provisions of the Environment, Air and Water Acts have never worked because the Code of Criminal Procedure is too complicated to deal with environmental matters; it takes years or even decades until someone is finally persecuted. However, civil cases under the NGT, for example, have met with resolution, Dutta added – companies have been held liable, been told to cough up compensation for restoration, and so on.

“I support the need to amend the laws,” he told The Wire. “I don’t see decriminalisation as a definite kind of dilution.”

Though it is problematic that the Union government didn’t provide a longer timeframe for public comments (currently, comments on these Acts are open till July 21), it is still better than seeking comments on a new draft amendment or the change being pushed through office memoranda,” Dutta added.

COVID-19: Structural Changes Are Needed to Address Violence Against Health Workers

Rather than only limiting responses to punishment and harsher penalties, policymakers must address the underlying structural factors that lead to violence against healthcare professionals.

As Indian healthcare professionals battle the raging COVID-19 pandemic, several media agencies have reported disturbing incidents of violence against healthcare professionals. In Indore, stones were pelted at healthcare workers trying to screen for the coronavirus, while in Hyderabad, a junior doctor was assaulted by relatives of a deceased patient. Similar incidents have been reported in other parts of the country as well.

While the COVID-19 pandemic is admittedly unprecedented, these incidents of violence are themselves not new and are part of a larger pattern that has received widespread media coverage in recent years. The Vidhi Centre for Legal Policy’s research on violence against healthcare professionals analysed 56 such reported incidents of violence between January 2018 to September 2019. In a number of such instances, the death of the patient was an immediate trigger for violence, while aggressive relatives prompted violence in other situations.

A review of Indian studies and academic writing on the issue revealed the crippling lack of infrastructure and personnel to deal with growing numbers of patients, poor quality or complete lack of primary care, leading to overburdening of secondary and tertiary care facilities, and overall poor communication skills as distinct causal factors of violence.

Also Read: India Needs an Urgent Law to Protect All Health Workers From Violence

Turning a crisis into an opportunity for bigger reforms

An immediate response to violence against healthcare professionals is usually prosecution under harsh laws and calls for new laws to deter similar conduct in the future. This response is based on the theory of deterrence which assumes that offenders make rational choices and avoid indulging in certain conduct due to the high costs associated with the consequences.

Deterrence-based reasoning, however, works better when laws are accompanied by efficient enforcement and criminal conduct is premeditated rather than the result of sudden and violent emotions. In India, violence against healthcare professionals occurs in specific contexts and situations and is hardly ever premeditated. Further, the well-acknowledged slow pace of the criminal justice system questions the efficacy of only using criminal laws to address violence in healthcare settings.

In light of COVID-19, the policy-makers are focusing their attention on meeting the immediate needs of healthcare professionals such as supplying adequate personal protective equipment (PPEs) and ramping up infrastructure by increasing isolation facilities and ventilators. However, the crisis presents an additional opportunity to take a long, hard look at Indian healthcare and address many of the systemic issues which have led to violence.

Therefore, rather than only limiting responses to punishment and harsher penalties, policymakers must address the underlying structural factors that lead to violence against healthcare professionals.

Members of Resident Doctors Association of AIIMS wearing bandages on their heads protest to show solidarity with their counterparts in West Bengal. Photo: PTI)

Need for structural changes

While global best practices suggest that several steps can be taken by the healthcare establishments themselves to prevent violence and to provide redress to their employees, hardly any steps are taken in India at the organisational level to prevent and address such violence in healthcare establishments. The World Health Organisation (WHO) recommends that specific obligations should be imposed on healthcare establishments to prevent violence like the elimination of risks of violence, routine assessment of the incidence of violence and its causes, developing policies, plans and monitoring mechanisms to combat violence, setting up adequate mechanisms for reporting.

Post-incident interventions should also be undertaken by healthcare establishments like providing medical treatment, counselling, management support, representation and legal aid, rehabilitation etc. Additionally, having proper grievance redressal mechanisms in healthcare establishments for patients can prevent them from getting triggered.

Further, as healthcare professionals in India are not protected by labour laws, having an occupational health and safety framework in the health sector in India, similar to the US, can go a long way in addressing the issue of violence. In the US, employers including healthcare establishments are liable to provide their employees with a workplace free from recognised hazards likely to cause death or serious physical harm. In addition to violence, this kind of framework will also impose greater accountability on healthcare establishments towards ensuring the safety of healthcare workers in a pandemic when they are exposed to higher risks.

Also Read: At AIIMS, Confusion as Healthcare Workers Asked to Reuse N-95 Masks

As poor communication skills in healthcare professionals have been identified as one of the factors linked to the rise in violence against them, the Indian medical curriculum needs to be reformed to make medical graduates equipped with effective and empathetic communication skills. The medical training curricula should focus on techniques to deal with the grief of the patient’s attendants, socio-political reasons underlying the flareups involving patients and their relatives, and the ability to deal with vulnerable groups such as the victims of sexual abuse and the LGBTQ+ community. Addressing these issues will contribute to preventing the triggering of violence due to the lack of communication skills in doctors. In the context of the current crisis, where doctors may be overburdened even accessible public communication about the pandemic could go a long way in addressing misconceptions.

Another factor that has contributed to violence in recent incidents and has come in the limelight in the current COVID-19 crisis is the breakdown of trust between the healthcare system and the patient population. For instance, COVID-19 has highlighted concerns regarding access to ventilators and prohibitive costs in private hospitals. These correspond to identified reasons which include high cost of procedures, medication, and hospital stay; inconsistent quality of treatment based on patient’s ability to pay; perceived corruption of the doctor-pharmaceutical company nexus, among others. This highlights the urgency of rehauling the regulation and governance of healthcare in India to ensure accessibility and greater accountability on the part of healthcare establishments, both public and private.

Turning our attention towards these structural issues in the long term will not only address the problem of violence in healthcare settings but will also help build trust in doctor-patient relationships. The COVID-19 pandemic is an opportunity to think deeply about these issues.

Akshat Agarwal and Shreya Shrivastava are research fellows at the Vidhi Centre for Legal Policy. Views expressed are personal.

The Power Opposition Parties Desperately Need to Keep the Ruling Party Accountable

‘Opposition days’, a popular measure in countries like Canada and the UK, are essentially a parliamentary oversight mechanism whereby certain days during a session are allocated for opposition parties to set the agenda of the house.

The memories of the deadly riots that rocked the national capital are still fresh in the minds of India’s citizens. Even now, corpses are being lifted out of Delhi’s canals and yet, there has been no reckoning for the Bharatiya Janata Party (BJP). Over 50 people have been killed in the riots and hundreds, if not thousands, of Muslims have lost their livelihoods and homes to violence and arson.

The 19th parliamentary Budget Session is currently ongoing and opposition parties have rightly demanded that the Delhi riots and the BJP government’s alleged complicity in the matter be discussed on the floor of the house. However, with its brute majority, the BJP has thus far stonewalled the demands of the Opposition Party and refused to discuss the riots. Speaker Om Birla has said that the matter would only be discussed post Holi, citing a myriad of reasons ranging from inconvenience to threats to national security.

This seems to be the value that is attached to the lives of the Delhi riot victims.

Unfortunately, there is legal backing for the BJP’s stonewalling of the opposition. The answer for BJP’s temerity lies in the ‘Rules of Procedure and Conduct of Business in Lok Sabha’. As the title suggests, these are the Rules that govern the conduct of proceedings of the Lok Sabha.

As per Rule 25, the Government (meaning the ruling party) alone has the right to set the agenda for discussion. The Speaker of the house is allowed to vary the set business of the day, if and only if he is satisfied that there is sufficient ground for such variation.

Rule 31(2) of the Rules also states clearly that no business not included in the list of business circulated by the Ruling Party shall be discussed in the House without the permission of the Speaker.

Also read: ‘Discuss Delhi Riots After Holi,’ Says Speaker Om Birla, Parliament Erupts in Anger

What this essentially means is that none of the provisions in the Rules allow opposition parties to set the agenda in a session. Currently, parliamentary time is controlled almost entirely by the party in power which, as a rule, does not provide sufficient time and opportunity for opposition parties to question or seek clarifications on matters of public importance.

Provisions such as question hour, replies to unstarred questions etc. are insufficient to discuss matters that need far more time and deep reflection by the parliamentarians.

Not only is the cause of justice and good conscience hamstrung by the Lok Sabha’s Rules but precious parliamentary time that could have been used to discuss important matters of governance is also lost.

A study by the Vidhi Centre for Legal Policy titled ‘Disruptions in the Indian Parliament‘ pointed out the fact that disruptive behaviour by members of parliament during session across legislative bodies in the country results in a massive loss of legislative productivity and time. For instance, in the 16th Lok Sabha, over 16%, i.e., 10 working day, out of a total 68 working days were lost to disruptions.

Disruptions like these lead to a loss of precious legislative time and set a dangerous trend of important bills being passed without adequate deliberation and debate.

More often than not, these disruptions occur precisely because Opposition members do not have adequate avenues to discuss emerging issues where the Ruling Parties need to be held accountable.

Solution

It is unfortunate that in the Indian parliamentary system, the rights and functions of the opposition with regards to the government have not been adequately defined. However, there is one way to address this problem and ensure that the any government with a brute strength is made answerable and accountable for its actions, inactions and decisions on the days of riots.

In order to address this disparity and simultaneously reduce the number of disruptions and the subsequent loss of legislative time, the practice of ‘Opposition days’ needs to become a part of legislative sessions. This can be achieved through an amendment to the Rules of Procedure and Conduct of Business in the Lok Sabha.

Also read: Delhi Riots, the Aftermath: The Tyranny of Majoritarian Politics Is on Full Display

‘Opposition days’ are essentially a parliamentary oversight mechanism whereby certain days during the session are allocated for the opposition parties to set the agenda of the house.

They have been a popular measure across countries such as Canada and the United Kingdom. “Allotted Days” in Canada, for instance, see opposition party members propose motions for debate on any matters falling within the Parliament’s jurisdiction. There are 22 “allotted days” in each calendar year and each opposition party is allocated such days based on its proportional strength in the House.

Similarly, this system of opposition days also finds a place in the United Kingdom’s Westminster system. Here, out of the 20 allotted opposition days per session, 17 days are allotted to the main opposition leader, while the rest are given to the second largest opposition party. This procedure is laid down under Standing Order 14 of the House of Commons. The topic of debate and the text of the motion as decided by the opposition parties are shared with the ruling party so that they may prepare for the proposed debate.

Also read: Narendra Modi, an International Embarrassment

This is precisely what needs to be done in the Indian context as well. By adopting opposition days, opposition parties would be given the right to hold the ruling party accountable instead of having to resort to disruptions of the house. The ruling party would then have no choice but to answer the questions of the opposition parties.

However, the irony lies in the fact that the decision to amend the Rules and introduce “opposition days” will have to be taken by the ruling party itself which will essentially mean that it will facilitate an increase in its own accountability. However, history in this case provides hope. Just as the Janata Dal Government enacted the 43rd and 44th Amendments to the constitution to undo the damage done to it during the Emergency, it can only be hoped that the next government would hold the needs of the nation above party politics and amend the Rules to enable opposition days in India.

Akhileshwari Reddy is a Research Fellow at the Vidhi Centre for Legal Policy, Karnataka.

Centre’s New Rules for Appointing Income Tax Tribunal Members Are Still Problematic

The changes made to the ITAT under the new rules seem to blatantly ignore the principles iterated by the Supreme Court in a number of cases.

The politics of how members are appointed to India’s legal tribunals has always been a contentious issue.

Independence of the judiciary and separation of powers have been held to form part of the basic structure of the Indian Constitution. Considering tribunals perform the functions earlier performed by courts, the Supreme Court has held that such tribunals must also possess a dominant judicial character like courts and adhere to the principles of separation of powers.

Thus, tribunals in India are mandated to be similar to courts in terms of appointment and removal procedures, qualification of members, etc.

Last year, the Supreme Court struck down rules on the qualifications, appointments, removal, and remuneration of members to various tribunals formulated under Section 184 of the Finance Act, 2017, as being violative of the principle of separation of powers, and ordered the government to formulate new rules in strict adherence with the principles laid down by it.

Accordingly, on February 12, new rules were notified. However, the changes made to the Income Tax Appellate Tribunal (ITAT) under the new rules seem to blatantly ignore the principles iterated by the Supreme Court in a number of cases ranging from L. Chandra Kumar v. Union of India in 1997, to Rojer Mathew v. South Indian Bank in 2019.

In the erstwhile rules struck down by the Supreme Court last year, the search-cum-selection committee constituted for the purposes of appointing members of the ITAT – other than for the post of president and vice president of the tribunal – consisted of a minimum of two, and a maximum of four representatives from the government as opposed to just one judicial member.

This arrangement was held to be a direct contravention of the doctrine of separation of powers and an encroachment on the judicial domain. The Supreme Court went on to categorically hold that a committee constituted for the purposes of appointing tribunal members must be dominated by judicial members and not representatives from the government. Despite this, the new rules envisage an equal representation with two judicial members and two representatives from the government, without codifying a method of resolution in case of a tie between the members with judicial members voting alike.

Supreme Court. Photo: PTI

In order to ensure compliance with the Supreme Court’s directives, the judicial members must have the power to outvote government representatives in such situations, to ensure judicial dominance in the appointment process. However, equal representation is unlikely to be viewed by the courts as a means to achieve the desired outcome. While the new rules empower the search-cum-selection committee to formulate its own procedures, and this anomaly could be rectified therein by providing the judicial member with a casting vote in case of a tie. However, it remains to be seen how the search-cum-selection committee acts in this regard.

The composition of the ITAT has been retained from earlier with a president, a vice president, judicial members and accountant members. While the Supreme Court has held that judicial members should be given preference for appointment to the posts of president and vice president, the new rules mandate only the president to be a judicial member and the search-sum-selection committee has discretion over appointing either a judicial member or an accountant member as the vice-president. Thus, the search-cum-selection committee must be mindful while filling up the vacancy for the post of the vice-president, and only resort to appointing an accountant member as the vice president in cases where a suitable judicial member cannot be appointed.

Further, the new rules identify the eligible pool of candidates fit for appointment as judicial members of the ITAT. These include district judges with 10 years of service, members of the Indian Legal Services, and advocates with 25 years of standing. The Supreme Court has time and again held that the members of the Indian Legal Services are not fit for appointment as judicial members of any tribunal. However, the government seems to have failed to comply with this direction of the Supreme Court.

Furthermore, the apex court has categorically held that advocates having 10 years of standing, and district judges with five years of experience are perfectly eligible to be appointed as judicial members of tribunals. Despite that, the eligibility for appointment of advocates as judicial member of the ITAT has been increased, and for district judges, the threshold is above the minimum standard set by the Supreme Court.

While previously, advocates having 10 years of experience were eligible for appointment as members of the ITAT, this limit has now been changed to 25 years of standing experience, thereby narrowing the pool of candidates eligible for appointment as judicial members. This seems odd, given that on several occasions, the government has expressed its concern over its inability to find enough qualified members from the judiciary to be appointed as judicial members of a tribunal.

While the new rules suffer from lesser anomalies than the version struck down by the courts last year, some irregularities as identified persist nonetheless. Considering it is an age-old issue which has seen multiple litigations, the government needs to step up and fix these anomalies before it is dragged to courts again.

Nikhil Kapoor is a research fellow with the Tax Law Vertical of the Vidhi Centre for Legal Policy. The views expressed in this article are personal.

India Justice Report Ranks Gujarat 12th out of 18 States

In terms of police personnel, the study says that Gujarat’s sanctioned strength is one of the lowest in India in proportion to its population.

A Tata Trusts study, released in Delhi on Thursday, has ranked “model” Gujarat 12th out of 18 major states it has analysed across India to “assess” the police’s capacity to deliver justice. Several of the advanced states such as Tamil Nadu, Karnataka, Punjab, Haryana, Maharashtra, Andhra Pradesh and Telangana as well as some of the so-called Bimaru states such as Odisha, Jharkhand and Chhattisgarh are found to have ranked better than Gujarat.

Sponsored by India’s oldest philanthropic organisation, founded in 1892 by Jamsetji Tata, the 146-page study, ‘India Justice Report: Ranking States on Police, Judiciary, Prisons and Legal Aid’, has been carried out by well-known civil society experts from the Centre for Social Justice (CSJ), Common Cause, Commonwealth Human Rights Initiative (CHRI), DAKSH, TISS-Prayas and the Vidhi Centre for Legal Policy.

Seeking to rank states in delivering fair and speedy justice, the study claims to have used only government data, saying, “Sadly, taken collectively, the data paints a grim picture of justice”. It regrets, India’s justice delivery system “is starved for budgets, manpower and infrastructure”, and “no state is fully compliant with standards it has set for itself”. It criticises “sluggish” governments for being content with creating “ad hoc and patchwork remedies to cure deeply embedded systemic failures.”

Also read: India’s Per Capita Expenditure on Free Legal Aid Is Just 75 Paise Per Annum: Report

Lamenting utter shortage of police personnel, the study says, Gujarat’s sanctioned strength is one of the lowest in India in proportion to its population. Falling well below the national average (151 for 100,000 population), it is 120 in Gujarat, worse than Madhya Pradesh (147), Rajasthan (142), Madhya Pradesh (125), and Rajasthan (122). Illustratively, the study says, India’s “BRICS partners Russia and South Africa with far smaller populations have two to three times India’s ratio.”

While constabulary forms 85% of the total police personnel, here the situation is even worse. While among major states Kerala and Tamil Nadu are the only ones that have “reached the sanctioned strength”, the six states where the shortfall is of more than 25% are Haryana, Bihar, West Bengal, Jharkhand, Gujarat and Uttar Pradesh.

As for the numbers of people one police station, the study finds that here again Gujarat’s performance is, again, one of the poorest. Thus, it has a whopping 140,000 people per urban police station as against 33,000 people in Odisha.

Coming to prisons, the study finds that Gujarat ranking 9th among 18 major states, and states performing better than Gujarat include both advanced and Bimaru states – Kerala, Maharashtra, Karnataka, West Bengal, Odisha, Bihar, Madhya Pradesh and Chhattisgarh.

Gujarat is found to be one of the seven 18 major states (others being Rajasthan, Madhya Pradesh, Haryana, Odisha, Kerala and Tamil Nadu), which have seen a “decline in average budget utilisation in the five-year period between 2011–2012 and 2016–2017.”

Gujarat showed that while state expenditure rose by 12.5%, prison expenditure actually fell by 9.3%.

In fact, it says, “In ten states, prison expenditure did not grow at the same pace as state expenditure; with Gujarat showing that while state expenditure rose by 12.5%, prison expenditure actually fell by 9.3% in 2015–2016.”

Also read: Police in India Endorse Encounter Killing, Mob Punishment: Study

The study comments, “This reinforces the overall neglect prisons face, remaining largely ignored in terms of state priority, which necessarily impacts on their declared objective of being centres for the correction and rehabilitation of inmates. Overcrowding and staff shortages can be as hard on prison staff as prisoners.”

Pointing out that improvement in prisons “has been uneven”, the study shows that here also Gujarat has fared badly. “Between 2012– 2016, Kerala, Karnataka, Chhattisgarh, Gujarat, West Bengal, Haryana, Bihar and Maharashtra reduced vacancies at both officer and cadre staff levels”, adding, “Shifting as they are meant to, towards reform and rehabilitation, prison systems are required to have a special cohort of correctional staff.”

Citing the Model Prison Manual, 2016, which seeks recruitment of welfare officers, psychologists, lawyers, counsellors, social workers among others as part of welfare units for the wellbeing of prisoners, the study says, Gujarat, along with Jharkhand, Karnataka, Rajasthan, Uttar Pradesh and Uttarakhand have “less than ten sanctioned posts”, while several other states such as Andhra Pradesh, Haryana and Telangana “had not sanctioned even a single post for correctional staff.”

The study further says, while the Model Prison Manual, 2016 requires one correctional officer for every 200 prisoners and one psychologist/counsellor for every 500, only state Odisha (124) is below this figure, while this figure is above 95,000 inmates per correctional staff in Uttar Pradesh, “followed by Gujarat with more than 12,000 inmates per correctional staff.”

This article originally appeared on Counterview and has been lightly edited for style.

Moving Beyond the Circuitous and Flawed All-India Judicial Service Debate

Not reforming the judiciary and State Public Service Commissions recruitment process is precisely why public discourse hopelessly and unimaginatively veers back to the AIJS debate.

The Niti Aayog’s proposal to institute an all-India exam to select judges in the lower judiciary and the Narendra Modi government’s resurrection of the All-India Judicial Service (AIJS) debate has once again created a buzz in legal and policy circles. Over the past two weeks, many have criticised the simplistic assumptions on which AIJS is based – that it would reduce vacancy and attract meritorious candidates.

While the debate around the AIJS repeats itself circuitously, what remains clear is that it is unlikely to be instituted any time soon. The proposal for an AIJS has faced significant roadblocks for nearly four decades. In the absence of any consensus on this reform, a far more worthwhile exercise would be to think of how high courts and State Public Service Commissions – the recruiting authorities for the lower judiciary examinations – can institute internal reforms to improve the recruitment process.

Not reforming these internal processes is precisely why public discourse hopelessly and unimaginatively veers back to the AIJS debate. Given that at least nine high courts have explicitly rejected the idea of an AIJS, it would be a good idea for them to step up and institute reforms internally. This would demonstrate commitment towards ensuring efficient recruitment.

Also read: We Need Annual Diversity Statistics for the Judiciary

A recent study conducted by the Vidhi Centre for Legal Policy, titled ‘Discretion and Delay: Challenges in Becoming a District and Civil Judge‘ analyses all state judicial service rules and qualitatively evaluates them on the grounds of efficiency, accountability and transparency.

These rules, which govern recruitment in the lower judiciary, are framed under Articles 233 and 234 of the constitution, read with article 309, which vests all powers of recruitment and appointment with the State Public Service Commission and high courts.

The AIJS debate resurrects itself every now and then precisely because little attention is paid to how judicial service rules can be amended or improved. In this regard, there are several issues that need to be tackled.

Lack of clearly designated authorities

The high court is responsible for conducting the examination for the direct entry of district judges whereas for civil judge (junior division) posts, the responsibility of hiring suitable candidates is jointly held by the high court and the State Public Service Commission.

A study of the various state judicial service rules revealed that apart from identifying a recruiting authority, most rules do not mention who within these bodies are responsible for conducting the examination along with their specific roles and responsibilities. This results in a lack of accountability in the entire examination process.

Also read: Rethinking the Way India Allocates Judges to Different High Courts

While most high courts may have a full-time designated committee conducting recruitment, the composition, tenure and functions of such committee members are never clearly specified in the rules.

Instead, these decisions are left to the discretion of the Chief Justice. Moreover, these duties are held only temporarily by individuals and is subject to frequent rotation. There is no binding requirement of having a full-time, dedicated staff responsible for conducting the examination.

Ad-hoc procedures

While interviewing candidates for our report, we noted that the uncertainty associated with such examinations is another challenge. Many states do not conduct recruitment drives yearly. Further, only five states mentioned the frequency with which examinations should be held for the civil judge (junior division) cadre. Often, candidates are left waiting for the announcement of the judicial service examinations and cannot plan adequately in advance. The system thus is currently quite ad-hoc.

Recruiting authorities also do not release an ‘annual calendar’ in the beginning of the year detailing the timeline for the examination, which would help candidates plan ahead. The Union Public Service Commission, which conducts examinations for the civil services, publishes such a calendar every year.

This calendar informs candidates of the dates of the various examinations at the very beginning of the year. This brings in a degree of certainty and streamlining of the examination procedure since candidates know how to devote their time to preparation.

No provision for grievance redressal

One major failing of the judicial service examinations is the fact that it does not have an in-built mechanism for grievance redressal. As a result, many avoidable issues such as problems with question papers and eligibility criteria get frequently challenged in high courts.

None of the state judicial service rules have any provision on re-evaluation of answer-scripts. Thus candidates, who want their papers re-evaluated, have to file Right to Information applications. If their requests are rejected for some reason, they have to litigate the matter in the high court.

Arguably, candidates should not have to approach the high court for demanding their answer-scripts for the purposes of re-evaluation as this only leads to unnecessary litigation. This has the potential of delaying of the entire examination schedule. The lack of both re-evaluation provisions and an associated application procedure for obtaining the necessary answer scripts, has a negative implication on the transparency of such a process.

Establishing a grievance redressal body under these rules, along with a set-established procedure and timeline for responding to such requests, could easily take care of such concerns and reduce the discretion exercised by the recruiting authorities in this regard.

The need of the hour therefore, is to shift focus away from the AIJS and instead debate how the judiciary and State Public Service Commissions can reform their recruitment process to tackle these issues. The lack of clearly designated authorities and grievance redressal mechanisms along with ad-hoc procedures results in the creation of a system of appointment where unregulated discretion operates

Diksha Sanyal is a Research Fellow at the Vidhi Centre for Legal Policy where she works on Judicial Reforms in India.

With the Lower Judiciary Still an Old Boys’ Club, the Gender Imbalance Must Be Addressed

It is time that India recognises equal gender representation as an issue and take effective remedial measures.

Credit: iStockphoto

India prides itself on its diversity, but its judiciary cannot. Since its inception in the 1950, the Supreme Court of India has seen a total of six women judges, of which the first female judge, Fathima Beevi, was appointed only in 1989. The 24 High Courts of the country have had a similarly dismal record where women judges constitute just a little over 10% of those appointed.

The question of judicial diversity has been debated across the globe. Although a contentious issue, where arguments exist both in favour of and against the constitution of a bench that reflects social diversity, it is generally agreed that, in the very least, a judiciary, which reflects the diversity of the society in which it exists, enjoys greater public confidence and hence greater legitimacy.

In the Indian context, such public discourse on judicial diversity faces two critical challenges. First, issues of pendency, vacancy and delay have largely dominated the discussion of judicial reforms in India. Second, despite the lower judiciary being the first point of contact for litigants, it receives a disproportionately low amount of attention when compared with the higher judiciary.

In a recent study by the Vidhi Centre for Legal Policy called ‘Tilting the scale: Gender imbalance in the lower judiciary’, we have attempted to provide fresh perspective to the discourse on judicial reforms by highlighting the lack of gender representation within the lower judiciary. As of 2017, the number of women judges can be pegged at around 28% of the total strength. This corroborates figures quoted by the government in response to parliamentary questions regarding gender proportion in the lower judiciary. Furthermore, we also provide both state and district-wise data on the number of women judges, which might prove to be important for policy-makers and researchers in diagnosing the issue.

States such as Bihar (11.52%), Jharkhand (13.98%), Gujarat (15.11%), Jammu and Kashmir (18.62%), and Uttar Pradesh (21.4%) are the worst performing states. On the other hand, Meghalaya (73.8%), Goa (65.9%) and Sikkim (64.7%) fall on the other end of the spectrum.

State-wise percentage of women judges in the lower judiciary. Credit: Vidhi Centre for Legal Policy

We have also observed in our report that some states have instituted reservation as a measure to remedy the gender imbalance within the lower judiciary. Although the efficacy of such a policy remains a moot point, it can be understood that States are still relying on such measures. For instance, Bihar, which has the worst gender proportion in the lower judiciary most recently has brought in 35% reservation for women in 2016.

Additionally, our data set has also helped us identify the decrease in the percentage of women within the lower judiciary itself as we move up its tiers. Based on the State Judicial Services Rules, the lower judiciary roughly comprises of three tiers, namely: civil judge (Jr. division), civil judge (Sr. division), and district judge in ascending hierarchy.

While we see that at the lowest entry level, i.e. civil judge (Jr. division), the proportion of women is fairly good in most of the states (lies between 40%-50%). As we move upwards through these tiers, there seems to be a decrease in their proportion for the selected states we have done this analysis for so far. The causes behind this needs further probing and in-depth research.

District-wise percentage of women judges in the lower judiciary. Credit: Vidhi Centre for Legal Policy

At a more generic level, based on the 2011 census data, we also observe a moderate correlation between the representation of women in the judiciary and sex-ratio. Although there is an obvious link between the two, it merits attention since it plays a significant role and has a considerable impact on the issues of gender representation in the public sphere.

This has been recognised by the recent Economic Survey carried out by the government, which has reiterated equal gender participation in the work-force as a long-standing challenge that needs to be remedied collectively by all the responsible stakeholders. The Survey highlighted the fact that women’s participation in the workforce to the level of men has the potential to boost the Indian economy up to 27%. It is time that India recognises equal gender representation as an issue and take effective remedial measures, including in the Indian judiciary.

Several senior and respected women in the legal profession have stated that the profession still remains ‘an old-boys club’ and it has been harder for women to break the ‘glass-ceiling’. Our research intends to provide the much required impetus to start a conversation in this area.

Arijeet Ghosh is a Research Fellow with the Judicial Reforms Initiative at Vidhi Centre for Legal Policy, Delhi. The author acknowledges inputs made by Diksha Sanyal and Nitika Khaitan for this piece.

India’s Legal Reforms Process Facing Multiple Crises, New Study Finds

A report by the Vidhi Centre for Legal Policy found that on an average, a law took 261 days to come into force and 14% of laws took up to 1000 days to become implementable.

Indian Parliament. Credit: Sarvagnya/Wikimedia Commons, CC BY-SA 3.0

The term ‘legal reform’ has caught the imagination of policymakers, the judiciary and the general public, taking everyone by storm. Suddenly, everybody is clamouring to usher in new laws and weed out redundant ones. The government and the Law Commission have also jumped onto the bandwagon by implementing a slew of new measures to reform laws. However, a crucial aspect of the entire process remains ignored – the quality of Indian lawmaking and also law amending, which functions as the fulcrum of any kind of legal reform.

Moreover, significant legal incidents often prompt a flurry of measures, especially the demand to establish special courts to deliver expeditious justice; even though legal scholars and jurists usually contend that justice should be timely, not hasty.

Now, a report by the Vidhi Centre for Legal Policy seeks to shed more light on the quality lawmaking in India.

Vidhi’s findings underscore why special courts are not really ‘special’ when it comes to delivering justice; rather, they often become vehicles of sloth and injustice.

“Lawmaking and legal reform in India has been, and continues to be made on the basis of anecdote, intuition and common sense, in the absence of any rigorous collection or analysis of empirical evidence,” the report states. This “common sense” is often defined and directed by political expediency and other calculations, mostly aimed at securing brownie points with the powers that be.

More importantly and perhaps for the first time in India, the report focuses on how the quality of legislative debates affects lawmaking. The researches have also crunched some numbers to gauge how effectively laws are actually implemented. And the picture is pretty bleak.

Not only is there an inordinate amount of time between when a Bill is first proposed and when it is passed, but there is also a large gap between when a Bill is formally passed into law and when it is notified in the Official Gazette (which is when a law becomes enforceable).

“Analysing a data set of 44 laws enacted by the Parliament between 2006 and 2015, the report found that on an average, a law took 261 days to come into force and 14% of laws took up to 1000 days to become implementable!”

Moreover, to add to these problems, the rules for implementing the substantive provisions of an Act are rarely accessible to the general public and are seldom discussed in either house of parliament.

For instance, in June 2015, the Maharashtra government, via a circular, mandated that the performance of public prosecutors would be evaluated by the number of convictions they manage to secure. In a legal system, where numerous people are deprived of their right to a fair criminal trial for multifarious reasons, such a mandate is particularly significant and needs to be discussed and debated before being implemented. assumes significance and needs to be discussed and debated. But, the circular was in Marathi and so was not debated in the state assembly.

Shoddy quality of legislative debates

Even a casual observer of parliamentary proceedings knows that the Lok Sabha – which is essential to lawmaking – is crippled by logjams. Either there is complete mayhem which results in the house being adjourned or there are querulous ‘debates’ which prevent any worthwhile business from being conducted.

In a 2013 paper, Victoria Aitken, expert legislative drafter, explains how the quality of legislative debate is directly proportional to the quality of the laws that are being made. Now Vidhi has developed both quantitative and qualitative indices to measure the quality of such debates.

The analysis covers the type of Bill that is being tabled, total time allotted for discussion, the number of disruptions during discussions, the number of amendments proposed by MPs and the total time taken to pass a Bill. Then comes the issue of the time taken to secure presidential assent, which is essential for turning a Bill into an Act.

Thereafter, the report delves into the qualitative aspects of the process – what were the concerns raised by specific MPs, were those who raised such concerns divided along party lines, whether there were discussions regarding the Bill’s constitutional validity, the availability of expert opinions and media reports which informed such debates and so on and so forth.

Framework to judge the quality of legislative debates. Credit: Vidhi report

‘Special’ in name only

A number of laws such as the Prevention of Corruption Act, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act – and also incidents like the 2012 Delhi gangrape – mandate that the special courts be established to effectively deliver justice. It is expected that specially-trained and sensitised judges would preside over these courts. However, Vidhi’s report reveals that not only are these courts severely understaffed but also that regular courts are merely designated as ‘special’ courts. The result – a huge pendency of cases and worse, no justice delivered

For instance, as this writer had pointed out in an earlier article, a special fast-track court for rape cases in Delhi showed symptoms which were only the tip of the iceberg as to how dire the situation is.

It is all well and good to advocate reforms, but if ushered in without the minimum mandatory procedural and qualitative safeguards, the measures are sure to backfire. Vidhi’s report, armed with robust data, substantiates this point.

Saurav divides his time between legal education and journalism, and between Bombay and Delhi.