Spicy IP

My favourite Intellectual Property portal has recently launched a "Basic Case Law Series". The first post in there pretty much says it all about the purposes of venturing out on that endeavour, and until TDL finds a topic that piques his interest, this should preclude my followers from feeling deprived in the interim...

Bankruptcy Code passes its first brush with the SC with flying colours

The Supreme Court has recently been as busy with landmark decisions as our blog hasn't, rattling out a steady stream of must-read judgments. My billions of followers must have been wondering what my take is on the triple-talaq and right to privacy decisions, but I'm really not going to write anything about those two. TDL is frankly a touch embarrassed that it took this long for our judiciary to arrive at those conclusions, so let's just leave it at that.

The SC's latest significant decision, delivered yesterday (31st Aug) does deserve plenty of attention though. The court hasn't had an occasion to expound on the Insolvency and Bankruptcy Code, 2016 before this, and they have embraced the opportunity wholeheartedly. Justice Nariman is in fine form, delivering a judgment that will come in handy in all future cases and transactions dealing with the Code, and his commentary deserves our full attention. More of the same please!

Protection of We Men - II

Order withdrawn! Well, that was quick! Many, many thanks to Adv. Jayna Kothari.

Protection of We Men From Domestic Violence

I hate to say "I told you so". Actually, no, who am I kidding, I relish saying "I told you so". So I'm smug and tickled to remind you, my billions of followers, that we had spoken earlier in these here pages of the possibility of the extension of the Domestic Violence Act to victims of all sexes. Accordingly, the Karnataka High Court stepped up to the plate last week to instruct a Magistrate to take cognizance of a complaint filed by a Man under the Domestic Violence Act.

Back then we had 'mourned' the decline in status of the Great Indian Male Persons (GIMPs) - they were not the only ones anymore who were liable to be prosecuted under the provisions of the Protection of Women from Domestic Violence Act, 2005 after all, and this gave rise to the possibility that they would soon be able to complain of domestic violence themselves. We had wished though that it would be Parliament that would expand the scope of the Act rather than the Courts, a wish that is looking even more forlorn now. With Parliament too busy certifying non-Money Bills as Money Bills to look into the plight of the greatly enfeebled Indian Men, the judiciary has pulled the ball back into its, er, court.

More to follow, I'm sure. It'll be fascinating, for example, to see how they get past the definition of an aggrieved person in S. 2(a) of the Act, since only such persons, per the Act, can be victims of domestic violence...

The Dormant Blog...

...will reawaken soon.

Certification of Money Bills

The Specified Bank Notes (Cessation of Liabilities) Bill, 2017 was introduced in the Lok Sabha yesterday (7th Feb) as a Money Bill and was passed after a reasonably interesting debate headed by the Finance Minister. Nothing noteworthy here - the original 30th December ordinance needed to be placed before Parliament once it reconvened, and it was certified as a Money Bill as it falls comfortably within the restrictions imposed by Article 110 of the Constitution. 

Specifically, Art. 110(1)(b) states that a Bill shall be deemed a Money Bill if it contains (only) provisions dealing with "... the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken by the Government of India", and since every currency note is a financial guarantee given by the Government, there can be very little opposition to this Bill's certification as a Money Bill. Not that no one has tried it, of course, but that particular piece is such a misguided polemic, it is best ignored anyway. (The very early use of the word "minions" ensures this, but there's even worse material within, such as the unashamedly incorrect interpretation of Rajya Sabha procedure regarding Rule 228, which deals with motions, not Bills).

There have been other instances though where the Government of the day has leaned upon the Speaker to certify Bills as Money Bills even though they contain provisions outside the list in Art. 110 that are not incidental to the pith and substance of the proposed legislation. The certification of the Bill that resulted in the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 as a Money Bill is one such controversial endorsement; it has been challenged in the Supreme Court and is the subject of the present tirade.

The issues are quite clear: since the Aadhaar Act deals with streamlining the various subsidies that are charged to the Consolidated Fund of India, there is sufficient pretext for the Government to certify the Bill as an MB and pre-empt its blocking by the Rajya Sabha, where it was, and continues to be, in minority. The petition challenging the Act contends that much of the Bill deals with providing "a legislative framework for the establishment and maintenance of a central database of identity-related information of residents, and elaborates as to how such information may be collected, stored and used" - issues that are arguably outside the scope of a Money Bill. It must be noted that the petitioner, former Environment Minister Jairam Ramesh, has a thing or two going for him; this is not just a petition by a current Rajya Sabha MP who's feeling left out.

Attorney General Mukul Rohatgi appeared before the SC in May 2016 to oppose the petition relying on Article 122. Certifying a Money Bill is contended to be a power vested in an officer of the Parliament by this Constitution for the purpose of regulating the procedure or the conduct of business in Parliament, and is therefore, per Art. 122(2), not subject to the jurisdiction of any court. The Government's response also contends that Jairam Ramesh should not be allowed to approach the SC under Art. 32 since there is no fundamental rights violation. Mr. Ramesh obviously feels that the right to privacy is the issue here, what with all the biometric information being gathered by the government. All in all, exactly the kind of juicy constitutional issue that we like to see debated.

To be honest, whether or not Art. 32 should have been used should really be immaterial to the issue. The larger concern is whether certification of Money Bills should be governed by guidelines laid down by the Supreme Court, or whether the present state of affairs should continue, i.e. the provision in Art. 110(3) "If any question arises as to whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon should be final" should prevail. 

There is a third path available, as suggested by M. R. Madhavan, the President of PRS Legislative Research: the Lok Sabha create a consultative mechanism - two senior MPs, as is the case with the British House of Commons - to advise the Speaker regarding Money Bill certification. The British provision Mr. Madhavan refers to is contained in S. 1 of the Parliament Act, 1911, the last sentence in clause (3) of which reads as follows: "Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection." Perusal of a pamphlet regarding Money Bills produced for the Office of the Parliamentary Counsel (the Indian equivalent would be the Legislative Department within the Ministry of Law & Justice), reveals that the practice is to nominate one member from each of the two main parties to the "Chairmen's Panel" (now called "Panel of Chairs"). This doesn't seem like a feasible solution at all in our system, and is anyway at best a consultative mechanism which is to be employed "if practicable". Easy to guess what's going to happen there most of the time.

So we are left with the SC regulating parliamentary procedure, a prospect it has usually baulked at in the past; see for example the 2012 case of Mohd. Saeed Siddiqui v. State of Uttar Pradesh, wherein a three-judge bench led by Chief Justice Sathasivam refused to delve into the contention that the Uttar Pradesh Lokayukta and Up-Lokayukta (Amendment) Act, 2012, enacted by the U.P. Legislative Assembly without it passing through the U.P. Legislative Council, should never have been certified as a Money Bill. The Court held that "the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending and before it becomes an Act", and stated that the Court was barred from ruling on this by Article 212, the Constitutional provision regarding Procedure in the State Legislatures equivalent to Art. 122. This despite a 2007 Constitutional Bench judgment in Raja Ram Pal v. Speaker, Lok Sabha, which had held that proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny... 

Art. 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.

One wishes that Their Three Honours in Saeed Siddiqui had at least considered whether or not the proceedings that resulted in the passage of that Uttar Pradesh Lokayukta Act as a Money Bill were "tainted by unconstitutionality" as they prima facie appear to be, especially since they were pretty much obliged to do so by a Five-Judge Bench...

There is surprisingly scarce jurisprudence on Money Bill certification, at least not much more that TDL could find apart from these few cases. There is a little bit more on Art. 122 and Art. 212, but the ratio from all of those largely is that the court will not interfere, hence the paucity of precedent on Art. 110, really. A pity, because theoretically, there really is nothing stopping a Speaker from certifying whatever s/he wants to as a Money Bill, provided the Lok Sabha doesn't get an opportunity to exercise its power under Art. 94(c). Some sort of discussion on this would really be welcome, and one wonders whether it will be carried out soon.

Now, the Aadhaar Act has suffered a veritable plethora of challenges, as tracked by this wonderful service provided by the Software Freedom Law Centre. The Jairam Ramesh petition, we are told, is scheduled for its next hearing on February 13th. Watch this space!

Mercy Petitions and Presidential Discretion - III

Well, at least I need not be worried about egg on my face anymore, since this article from The Wire showed up in search results today. And, we learn from it that this is actually the second time that the President (this President) has set aside advice given to him by the MHA regarding a mercy petition. The previous instance was the commutation of the death sentence awarded to Jeetendra (aka Jitu Singh Gehlot). Remember this commutation? Me neither. Mind boggling, the lack of footage for this.

Now, I don't want to go on some quixotic crusade, barking in the wind and all. But I really don't know which is more worrying - the fact that the President has begun to make a pattern out of disregarding the advice given to him by his Council of Ministers or the fact that no one seems to be concerned about it at all. Forget concern, The Wire article concludes that "Pranab Mukherjee’s quiet rejection of the government’s advice and the government’s tacit acquiescence to it have shown that it is indeed a proud moment in India’s presidency"! Egad! A proud moment in India's presidency? And what price India's Constitution?

The Indian Express' reporting on this commutation, last updated three days ago, mentions an interesting angle suggested by "sources" as to why the President has chosen this approach:

the President set aside the advice of the ministry as there were concerns about the decision unleashing a fresh round of caste skirmishes in Bihar and also because of the ‘inordinate delay’ by the state Governor in deciding on the mercy petitions

One is immediately reminded, by the first part of the above reasoning, of this commentary on the pardoning power:

The administration of justice through courts of law is part of the constitutional scheme to secure law and order and the protection of life, liberty and property. Under that scheme, it is for the judge to pronounce judgment and sentence, and it is for the executive to enforce them. Normally such enforcement presents no difficulty; but circumstances may arise where carrying out a sentence, or setting the machinery of justice in motion, might imperil the safety of the realm. Thus, if the enforcement of a sentence is likely to lead to bloodshed and revolution, the executive might well pause before exposing the State to such peril. 

[Constitutional Law of India, Vol. 2; H. M. Seervai, 4th Edition, pg. 2093, para. 18.112]

All well and good of course, but that Express article also tells us that the Bihar Governor, Ram Nath Kovind, had rejected the mercy pleas made to him by the four convicts under Art. 161 back in February 2016. And said rejection was indeed based on the advice of the Bihar Government, the particular Executive that would have to deal with any of the dreaded and apprehended renewed caste skirmishes. Now, Mr. Kovind has been a BJP MP in the Rajya Sabha, but the current Council of Ministers in Bihar advising him is drawn not from the BJP, but from the JD(U), RJD and the Congress. Also, since The Wire article focuses on the Dalit antecedents of three of the four, it should be noted that Mr. Kovind (Advocate Kovind, I should say) has been the President of the BJP Dalit Morcha as well as of the All India Koli Samaj. 

Setting aside the politics and returning to the constitutional issues, and the second part of the reasoning mentioned in the Express story: the inordinate delay (by the State Governor) in deciding the mercy petitions. That there has been tremendous delay is undisputed. The offences were committed in 1992 and the death sentence was awarded in 2001 and finally upheld by the SC in 2002. Over 14 years spent on death row is simply unacceptable. 

In its reporting on this, the Hindustan Times informs us that the mercy petitions were forwarded to the President's Secretariat on July 7th 2004. "However, the mercy petitions neither reached the Home Ministry nor the President's Secretariat. It was only after the intervention of the NHRC that these were processed after 12 years." Bizarre indeed, and sufficient reason, even in the otherwise bloodthirsty TDL's opinion, for commuting the sentence.

The Wire piece also uses the 'inordinate delay' line of reasoning, quoting the Shatrughan Chauhan case last seen in the previous post below, wherein a three-judge bench headed by Chief Justice Sathasivam held that undue delay in rejecting mercy petition amounts to torture and causes physical and psychological agony. The Court ruled that

if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone.

That's right: this Court is well within its powers to commute the death sentence. Not the President, against the advice of his Ministers. The government should have advised the President appropriately, in light of Shatrughan Chauhan. A more sound procedure: the convicts could have approached the Supreme Court citing Shatrughan Chauhan and have had their sentences commuted, reinforcing the precedent and laying down the guidelines forever. Were none of the many human rights bodies and anti-death penalty organisations (such as the PUDR, so instrumental in Shatrughan Chauhan) in contact with the four, advising them as to their rights? Did we really need to weaken the Constitution to uphold Shatrughan Chauhan?

Another possible additional reason for President Mukherjee's activism with regards to mercy petitions that has been put forward is that his five-year term expires in July and he would understandably wish to depart leaving behind no unfinished business. The President has indeed worked to ensure that he leaves a clean slate for his successor as far as mercy petitions are concerned. It can only be hoped though that the 14th occupant of the chair will regard these incidents as aberrations rather than precedents.

Mercy Petitions and Presidential Discretion - II

Having read about this issue for a day or so now, I'm quite surprised that no hue and cry has been made about the President setting aside the advice of the Ministry of Home Affairs and granting commutation. Maybe I'm reading too much into it? Or maybe one should not rely on the media to present the facts accurately? The law on this has been settled back in 1980 in Maru Ram v. Union of India [(1981) 1 SCC 107] by a five-judge bench of the Supreme Court. Apologies for the lengthy quote, but His Honour is not renowned for his brevity..

It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns. Being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. The subject is now beyond controversy, this court having authoritatively laid down the law in Shamsher Singh's case. So, we agree, even without reference to Art, 367 and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that, in the matter of exercise of the powers under Arts. 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis a vis his Cabinet is no higher than the President save in a narrow area which does not include  Art. 161. The Constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.

In short, acts committed by the President under Art. 72 (or by the Governor under Art. 161) must necessarily conform to the stipulations of Art. 74 (or Art. 163), viz. the titular head of the Executive shall act in accordance with the advice received from his Council of Ministers.

There are plenty of recent judgments where this position has been reiterated. For example, this piece of obiter dicta from H. S. Bedi, J. in Jagdish v. State of Madhya Pradesh [(2009) 9 SCC 495 (512)]:

The power of the President and the Governor to grant pardon under Arts. 72 and 161 of the Constitution has to be exercised under on the advice of the Executive Authority.

Or, from Arijit Pasayat, J. in State (Govt. of NCT of Delhi) v. Prem Raj [(2003) 7 SCC 121 (125)]:

The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as, Sections 432, 433 or 433-A of the [Criminal Procedure] Code or by any Prison Rules. But the President or the Governor, as the case may be, must act on the advice of the Council of Ministers.

And finally, P. Sathasivam, CJ. in Shatrughan Chauhan v. Union of India [(2014) 3 SCC 1] provided a detailed overview of the law on the matter of pardons, before noting:

In concise, the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is a Constitutional duty. As a result, it is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility reposed by the people in the highest authority. The power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it. Further, it is well settled that the power under  Article 72/161 of the Constitution of India is to be exercised on the aid and advice of the Council of Ministers.

Since it is a "constitutional duty", it follows that it needs to be executed within constitutional bounds. This isn't to suggest that President Mukherjee should be impeached per Art. 61 for violation of the Constitution, of course, but the entire concern is - why is TDL the only one talking of this? What am I missing, and exactly how much egg will I be left with on my face?

Mercy Petitions and Presidential Discretion

LiveLaw.com reported earlier today that President Pranab Mukherjee commuted the sentence of four death-row convicts to life imprisonment on January 1st. All well and good if you are an unqualified opponent of the death sentence (and The Dormant Lawyer is not one, more on that some other time though). What is singular about this particular act of pardon is that apparently it came against the advice of the Ministry of Home Affairs. According to that LiveLaw report, "this is perhaps the first time that the President used his discretion while considering a mercy petition from a death row convict".

Now, I wish folks at places like LiveLaw stop using terms such as "perhaps". Also, it is not clear whether the above refers to the current President or to Indian Presidents in general. Since the Dormant Lawyer is also the Dormant Teacher, the Dormant Consultant, the Dormant Mentor and the Dormant Rentier this week, he's set out to answer these questions for himself. More on this soon!

Goodbye 2016. And good riddance.

A terribly busy end to year for The Dormant Lawyer in his active other-life, resulting in me having no breathing space whatsoever to get down to writing anything at all (I blame Trump, of course), with plenty of work to be finished in these last two months. Thankfully, at least I never tend to have any currency notes to worry about anyway...

So until I get a chance to write an appropriately scathing review of this infuriatingly frustrating year that has gone by, I'll simply point my millions of followers to some other nice-and-readable material ("The IP scene in India in 2016").

Happy New Year everyone. May your troubles from 2016 be soon turned into dormant memories.